Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.dale Ernest Denoyer, Appellant, v. United States of America, Appellee, 33 F.3d 57 (8th Cir. 1994)

Dale Ernest DeNoyer, pro se, appeals from the district court's¹  order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We affirm.

In 1985, DeNoyer, an American Indian, was indicted under 18 U.S.C. § 1153 (1982 & Supp. III 1985) for first degree burglary (count I), robbery (count II), and involuntary sodomy (count III). Pursuant to a plea agreement, DeNoyer pleaded guilty to first degree burglary. DeNoyer was sentenced to twenty-five years in prison. He did not appeal. Subsequently, DeNoyer filed and the district court denied two motions to reduce his sentence pursuant to Federal Rule of Criminal Procedure 35, and a motion under Federal Rule of Criminal Procedure 11(e) to withdraw his guilty plea. DeNoyer did not appeal from any of these adverse rulings.

On September 10, 1993, DeNoyer filed this pro se section 2255 motion on the following grounds: (1) the court incorrectly sentenced him under state law; (2) the use of dismissed counts in sentencing violated the plea agreement; (3) the district court judge was biased in his sentencing; (4) the use of dismissed counts in sentencing resulted in double jeopardy; (5) the use of dismissed counts to impose the maximum sentence was cruel and unusual punishment; and (6) the use of his juvenile record in sentencing was impermissible. The district court denied the motion and DeNoyer appeals.

DeNoyer could have raised these issues in a direct appeal from his sentence, or in appeals from the denial of his Rule 35 motions. Thus, we need not consider this section 2255 motion absent a showing of cause and prejudice. See Reid v. United States, 976 F.2d 446, 448 (8th Cir. 1992), cert. denied, 113 S. Ct. 1351 (1993). DeNoyer has not shown cause or prejudice. Further, as DeNoyer does not claim he is actually innocent, the procedural bar to our consideration will not result in a fundamental miscarriage of justice. See Wallace v. Lockhart, 12 F.3d 823, 826-27 (8th Cir. 1994).

Accordingly, we affirm.