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DISTRICT OF COLUMBIA COURT OF

No. 89-00-1477
DANNY

. .CR F-2999-83
ApPEllEE.

FELIX,

AKA DANNY JACKSON, ApPEllANT,

v.
UNITED STATES,

Appeal from the superior Court of the District of Columbia (Hon. Nicholas Nunzio, Trial Judge) (Argued April 1, 1992 Before
KING,

Decided

May 20, 1992)

MACK,

and TERRY, Associate judges, and

Senior judge.

MEMORANDUM OPINION AND JUDGMENT

On September 30, 1983, a jury found appellant guilty on five counts of robbery. D.C. Code 22-2901 (1989). He was sentenced to two to six year terms of imprisonment on four of the counts and a five to fifteen year term on the remaining count. The sentences were to run consecutive to each other and to any other sentence.' This court affirmed appellant's conviction on April 28, 1986. 2 On October 18, 1989, appellant filed a motion to vacate sentence under D.C. Code 23-110 (1989).3 By order dated December 8, 1989, the trial judge denied appellant's motion without a hearing. In the appeal of the denial of that motion, appellant raises several issues for the first time: (1) that the trial court violated Super. Ct. Crim. R. 11 by threatening to invoke a harsher sentence if appellant failed to enter a guilty , Appellant was then serving a sentence in New York for a robbery conviction.
2 Felix v. United States, 508 A.2d 101 (D.C. 1986). In that appeal he challenged the timeliness of his trial under the Interstate Agreement on Detainers Act, the admission of other crimes evidence under Drew v. United States, 118 U.S. App. D.C. 11, 15-16, 331 F.2d 85, 89-90 (1964), and the propriety of the prosecutor's closing argument.

3 On October 3, 1988, appellant filed a pro se motion to vacate sentence under D.C. Code 23-110, which was denied by order dated February 27, 1988.

plea, (2) that the trial court unduly interfered in the trial proceedings denying appellant a fair trial, and (3) that the trial court improperly denied appellant's 23-110 motion without a hearing. We affirm. A motion for relief pursuant to 23-110 "is not designed to be a substitute for direct review." Headv. United States, 489 A.2d 450, 451 (D.C. 1985). "Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice by his failure to raise the issues in question on direct appeal." ld. at 451 (citing United States v. Frady, 456 U. S. 152, 167-68 (1982). Appellant's explanation for his failing to raise the issue relating to the plea proceedings on direct appeal is that the transcript of that proceeding was unavailable to him at the time of the direct appeal. He claims that the transcript would have shown that the trial court "threatened him with more severe punishment by exercising his right to stand trial. 1t The record reveals that the request for the transcript from the trial court was approved. However, the transcript apparently, was never provided. The record is silent with respect to the reason appellate counsel failed to pursue that request. Appellant, himself, was fully aware of what had occurred and presumably able to convey any concerns he might have had to appellate counsel. We fail to see any basis for concluding that failing to pursue the preparation of the transcript during the direct appeal meets the "cause" requirement of Frady and Head. Appellant cites no cases for that position, and we know of none. As to the trial court's alleged improper conduct during the trial itself, appellant has failed to show any "cause" whatsoever. He had access to the trial transcripts at the time of his direct appeal and could have raised that issue then. Indeed counsel at oral argument conceded as much, and offered no explanation for previous counsel's failure to have done so. In sum, since appellant has failed to give adequate cause for his failure to raise these issues on direct appeal, he is entitled to no relief in this collateral attack. Finally, since the record before the trial court upon the filing of the 23-110 motion revealed that the issues could have been raised on direct appeal, but were not, and since no cause was shown, the court did not err in denying the motion without a hearing. Head, supra. Accordingly, it is

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ORDERED and ADJUDGED that the order of the trial court be, and hereby is,
Affirmed.

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Judge Mack concurs in the result.

FOR THE COURT:

Joy A. Chapper, Acting Clerk

Copies to:

HDn. Nicholas S. Nunzio

Clerk, Superior Court Richard Todd HLmter, Esq. 801 N. Pitt Street, #209 Alexandria, VA 22314 John R. Fisher, Esq. Assistant U.S. Attorney

1l3nny Felix, pro se 502 S. Cedar Street, 11:208-324 Frio County Jail Pearsall, IX 78061