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. .-DISTRICT OF COLUMBIA COURT OF

No. 89-00-1477DANNY FELIX AKA DANNY JACKSON,

ApPEllANT,v. CR F-2999-83UNITED STATES,ApPEllEE.

Appeal from the superior Courtof the Dist r ic t of ColumbiaHon. Nicholas Nunzio, Trial Judge)

Argued April 1, 1992 Decided May 20, 1992)Before KING, and TERRY Associate judges and MACK Senior judge.

MEMORANDUM OPINION AND JUDGMENTOn September 30, 1983, a jury found appellant gui l ty on f ivecounts of robbery. D.C. Code 22-2901 (1989). He was sentencedto two to s ix year terms of imprisonment on four of the countsand a f ive to f i f teen year term on the remaining count. Thesentences were to run consecutive to each other and to any othersentence. This court affirmed appellant s convict ion on April28, 1986. 2 On October 18, 1989, appellant f i led a motion tovacate sentence under D.C. Code 23-110 (1989).3 By order dated

December 8, 1989, the t r i a l judge denied appe l lan t s motionwithout a hearing. In the appeal of the denial of tha t motion,appellant ra ises several issues for the f i r s t time: (1) t ha t thet r i a l court violated Super. Ct. Crim. R. 11 by threatening toinvoke a harsher sentence i f appellant fa i led to enter a gui l ty

, Appellant was then serving a sentence in New York for arobbery convict ion.2 Felix v United States 508 A.2d 101 (D.C. 1986). In tha tappeal he challenged the t imeliness of his t r i a l under the

In ters ta te Agreement on Detainers Act, the admission of othercrimes 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 theprosecutor s closing argument.3 On October 3, 1988, appellant f i led a pro se motion tovacate sentence under D.C. Code 23-110, which was denied byorder dated February 27, 1988.

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2plea, (2) tha t the t r i a l court unduly interfered in the t r i a lproceedings denying appellant a fa i r t r i a l , and (3) tha t thet r i a l court improperly denied appel lant 's 23-110 motion without ahearing. We affirm.

A motion for re l i e f pursuant to 23-110 is not designed tobe a subst i tute for di rec t review. Headv. United States 489 A.2d450, 451 (D.C. 1985). Where a defendant has fa i led to raise anavai lable challenge to h is convict ion on di rec t appeal, he maynot ra ise tha t issue on col la tera l attack unless he shows bothcause for his fa i lure to do so and prejudice by his fai lure tora i se the issues in question on di rec t appeal. ld. a t 451(c i t ing United States v Frady 456 U. S. 152, 167-68 (1982) .

Appellant 's explanation for his fa i l ing to ra i se the issuerelat ing to the plea proceedings on direc t appeal i s tha t thet ranscr ip t of tha t proceeding was unavailable to him a t the timeof the di rec t appeal. He claims tha t the t ranscr ip t would haveshown tha t the t r i a l court threatened him with more severepunishment by exercising his r igh t to stand t r i a l .

The record reveals tha t the request for the t ranscr ip t fromthe t r i a l court was approved. However, the t ranscr ip tapparently, was never provided. The record i s s i len t withrespect to the reason appel la te counsel fa i led to pursue tha trequest . Appellant, himself, was ful ly aware of what hadoccurred and presumably able to convey any concerns he might havehad to appellate counsel. We fa i l to see any basis forconcluding tha t fa i l ing to pursue the preparation of thet ranscr ip t during the di rec t appeal meets the cause requirementof Frady and Head. Appellant c i te s no cases for tha t posi t ion,and we know of none.s to the t r i a l cour t ' s alleged improper conduct during thet r i a l i t se l f , appellant has fa i led to show any causewhatsoever. He had access to the t r i a l t ranscr ip ts a t the timeof his di rec t appeal and could have raised tha t issue then.Indeed counsel a t oral argument conceded as much, and offered noexplanation for previous counsel 's fa i lure to have done so. Insum, since appellant has fa i led to give adequate cause for hisfa i lure to raise these issues on direct appeal, he i s ent i t led tono r e l i e f in th i s col la tera l attack.

Finally, since the record before the t r i a l court upon thef i l ing of the 23-110 motion revealed tha t the issues could havebeen raised on direct appeal, but were not, and since no causewas shown, the court did not e r r in denying the motion without ahearing. Head supra.Accordingly, i t i s

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#89-(1)-14773

ORDERED and ADJUDGED that the order of the t r i a l court beand hereby is - Affirmed

Judge Mack concurs in the result .

FOR THE COURT:

Joy A ChapperActing Clerk

Copies to:HDn Nicholas S. NunzioClerk Superior CourtRichard Todd HLmter, Esq.801 N Pi t t Street #209Alexandria VA 22314John R Fisher Esq.Assistant U.S. Attorney1l3nny Felix pr se502 S. Cedar Street 11:208 324Frio County Ja i lPearsall IX 78061