### The Honorable William G. Cambridge, Chief Judge, Unite d 1 

### States District Court for the District of Nebraska.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-3632

___________ United States of America, * * Appellee, * * Appeal from the United States v. * United States District Court * District of Nebraska Everett Sileven, * * [TO BE PUBLISHED] Appellant. *

____________ Submitted: April 18, 1997 Filed: April 29, 1997

____________ Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

____________
PER CURIAM.

Everett S ileven appeals from a final judgment entered in the United States District Court for the Distr ict of Nebraska dismissing his Amended 1 Motion , filed pursuant to 28 U.S.C. § 2255, to vacate, set aside, o r correct his sentence. United States v. Sileven , No. 8:CR89-126 (D. Neb. Sept. 4, 1996) (memorandum and order); id. (Sept. 4, 1996) (judgment).

### -2- Sileven was convicted in 1992 for conspiracy to defraud the Unite d States, in violation of 18 U.S.C. § 371, and three counts of mail fraud, inviolation of 18 U.S.C. § 1341. He was sentenced on June 8, 1992, to fifteenmonths in prison and three years supervised release. He did not file a direct appeal. Acting pro se , he filed his original § 2255 motion on August 30, 1993, asserting claims that he lacked predisposition and tha t he was entrapped. With leave of the district co urt, Sileven twice amended his § 2255 motion, mo st recently with the assistance of retained counsel. Upon review of that latest amended § 2255 motion, the district cour t dismissed it and entered judgment for the government. Sileven filed the present appeal.

For r eversal, Sileven argues that the district court erred in (1 ) holding that he failed to show cause for his failure to raise on direc t appeal the predisposition and entrapment claims presently being asserted and (2) dismissing his claims without ordering the government to respond or conducting a hearing. He maintains that he did sufficiently demonstrat e cause to excuse the procedural default by indica ting in his amended motion that the government v iolated his rights under Brady v. Maryland , 373 U.S. 83 (1963). He suggests that he did not truly become aware of his claims until April 23, 1996, when the Justice Department responded to a request he made pursuant to the Freedom of Information Act, shortly after bein g indicted in October 1989. Upon careful review of the issues in this case, the record on a ppeal, and the parties' arguments in their briefs, we hold that the district cour t did not err in holdin g as a matter of law that Sileven had not adequately shown cause for his failure to raise on direct a ppeal these claims related to predisposition and entrapment. Moreover, Sileven has failed to sho w prejud ice to overcome the procedural default. The alleged exculpator y Brady

### -3-

materials would not have been relevant to Sileven's criminal prosecution and theref ore would not have been admissible in the criminal case, o r otherwise have affected its outcome. According ly, we affirm the judgment of the district court. See 8th Cir. R. 47B.
A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.