David S. Harrison, Petitioner-appellant, v. United States of America, Respondent-appellee, 39 F.3d 1187 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 39 F.3d 1187 (9th Cir. 1994)

Submitted Oct. 7, 1994. *Decided Nov. 8, 1994


Before: D.W. NELSON, NORRIS, and BOGGS,**  Circuit Judges.

MEMORANDUM*** 

Petitioner David Harrison pled guilty and was sentenced in 1989 to two ten-year prison terms and a five-year probation term for bombing and arson, in violation of 18 U.S.C. § 844(i), and aiding and abetting the interstate transportation of stolen property, in violation of 18 U.S.C. §§ 2314 and 2. Harrison's attorney filed a timely notice of appeal, which was dismissed for lack of prosecution on June 28, 1989. Unaware that his claim had been dismissed, Harrison, sua sponte, filed a Motion for Voluntary Dismissal of Appeal on August 1, 1989. Harrison filed this Motion to Vacate, Set Aside, or Correct his sentence under 28 U.S.C. § 2255 in February 1992. The court below denied the motion, holding that Harrison's issues were procedurally barred because he did not pursue them on direct appeal.

On appeal, we affirm. Harrison pled guilty, and thus can only show cause and prejudice necessary to overcome this procedural bar by demonstrating that his plea was involuntary or that he was denied effective assistance of counsel. See United States v. Cortez, 973 F.2d 764, 766 (9th Cir. 1992); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973).

Harrison has not argued that his plea was involuntary. Nor has he shown that his counsel's performance was deficient. Harrison moved on his own to dismiss his direct appeal. Therefore, he cannot argue that his counsel prejudiced his ability to pursue these issues on direct appeal by acting so incompetently that Harrison's prosecution was rendered unreliable or unfair. Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993); Strickland v. Washington, 466 U.S. 668, 686 (1984).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

The Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or used by the courts of this circuit except as provided by Ninth Circuit Rule 36-3