Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Dennis Khiralla, Defendant-appellant, 755 F.2d 933 (6th Cir. 1985)

This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record and the briefs filed by the respective parties, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The appellant is appealing the district court's summary dismissal of his 28 U.S.C. § 2255 motion to vacate his conviction. The district court had dismissed the appellant's petition because it appeared that he had previously filed and withdrew a direct criminal appeal. On appeal, the appellant contends that his conviction for extortion was not supported by the evidence and that the indictment was illegally duplicative in charging him with extortion and attempted extortion.

Where a federal defendant has chosen to waive his right to appeal, he has already had fair opportunity to present his federal claims to the federal forum, and since the collateral challenge may not do service for an appeal, the waiver of the direct appeal constitutes a bar to filing a Sec. 2255 motion. United States v. Frady, 456 U.S. 152, 164 (1982). In viewing the record of this case, it is apparent that the appellant had previously filed an appeal through counsel. Subsequently, again through the aid of counsel, a motion was filed by the appellant to vountarily dismiss the appeal. Along with the motion, the appellant attached a signed statement that indicated he understood he had a right to appeal, that counsel would assist him in the appeal, and the statement indicated that in spite of his right to appeal, he was voluntarily withdrawing the appeal. Consequently, he may not now file a Sec. 2255 petition in lieu of appeal. United States v. Frady, supra.

Accordingly, the judgment of the district court is affirmed pursuant to Rule 9(d) (3), Rules of the Sixth Circuit.