The Honorable William G. Cambridge, Chief Judge, United

1

States District Court for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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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. *

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Submitted: April 18, 1997

 Filed: April 29, 1997

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

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PER CURIAM.

Everett Sileven appeals from a final judgment entered in the United

States District Court for the District of Nebraska dismissing his Amended 1

Motion, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside, or

correct his sentence. United States v. Sileven, No. 8:CR89-126 (D. Neb.

Sept. 4, 1996) (memorandum and order); id. (Sept. 4, 1996) (judgment). 

 
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Sileven was convicted in 1992 for conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371, and three counts of mail fraud,

in violation of 18 U.S.C. § 1341. He was sentenced on June 8, 1992, to

fifteen months 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 that

he was entrapped. With leave of the district court, Sileven twice amended

his § 2255 motion, most recently with the assistance of retained counsel.

Upon review of that latest amended § 2255 motion, the district court

dismissed it and entered judgment for the government. Sileven filed the

present appeal. 

For reversal, Sileven argues that the district court erred in (1)

holding that he failed to show cause for his failure to raise on direct

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 demonstrate

cause to excuse the procedural default by indicating in his amended motion

that the government violated 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 being

indicted in October 1989. 

Upon careful review of the issues in this case, the record on appeal,

and the parties' arguments in their briefs, we hold that the district court

did not err in holding as a matter of law that Sileven had not adequately

shown cause for his failure to raise on direct appeal these claims related

to predisposition and entrapment. Moreover, Sileven has failed to show

prejudice to overcome the procedural default. The alleged exculpatory

Brady
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materials would not have been relevant to Sileven's criminal prosecution

and therefore would not have been admissible in the criminal case, or

otherwise have affected its outcome.

Accordingly, 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.