* Local Rule 47.5.1 provides: “The publication of opinions that

have no pre cedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession.”

Pursuant to that rule, the court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-30685

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STEVE DISMORE,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________

December 21, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM: *2 I.

In April 1984, the grand jury indicted Steve Dismore for three

counts of dist ribution of cocaine, but Dismore was not arrested

until October 2, 1991. He pleaded guilty pursuant to a plea

agreement. On February 26, 1992, the district court sentenced him

to a one-year term of imprisonment and a three-year term of special

parole for count 1 and imposed suspended, concurrent, three-year

terms of special parole and a five-year term of active probation

for counts 2 and 3. The term of probation was to commence upon the

expiration of the sentence of imprisonment pursuant to count 1.

On June 17, 1992, the district court granted Dismore’s F ED

. R.

C RIM

. P. 35 motion and suspended six months of his one-year prison

term plus all three terms of specia l parole. The court placed

Dismore on concurrent five-year terms of inactive probation as to

all three counts. Dismore quickly violated numerous terms of his

probation. On August 3, 1992, the district court revoked the order

of probation and sentenced Dismore as follows: Count 1——a one-year

term of imprisonment, with credit for time served, followed by a

three-year term of special parole; counts 2 and 3——eighteen-month

terms of imprisonment followed by three-year terms of special

parole. All of the sentences were imposed concurrently.

In November 1992, the district court granted Dismore’s second

rule 35 motion an d reduced his sentence to concurrent five-month

terms of imprisonment on each count, subject to sentence credit for

time served since July 1, 1992, and concurrent three-year terms of

special parole. Once again, Dismore rapidly violated the terms of1 Dismore has written several letters to the district court which the

court construed as sounding under § 2255 and denied. Dismore has not appealed

the denial of these motions.

3 his parole. He pleaded guilty to state charges of possession of

cocaine and was remanded to federal custody.

Dismore filed a § 2255 motion to vacate his federal sentence,

arguing that the government had violated his Speedy Trial rights by

failing to prosecute him in a timely manner and that his attorney

had been ineffective for failing to raise thi s issue. On May 2,

1994, the district court determined that Dismore was not entitled

to habeas relief and denied the motion, but it did not enter a

separate judgment as required by F ED

. R. C IV

. P. 58. Dismore filed

an untimely notice of appeal. We dismissed the appeal and directed

Dismore to move the district court for entry of a rule 58 judgment

which could serve as the basis for a timely appeal. On June 16,

1995, the district court entered judgment denying Dismore’s § 2255

motion for th e reasons set forth in its May 1994 order. Dismore

has appeal that judgment. 1

II.

Dismore argues that his criminal prosecution violated his

Sixth Amendment right to a speedy trial and that his attorney

provided ineffective assistance.

Section 2255 identifies four specific grounds upon which a

federal prisoner may move to vacate, set aside, or correct his

sentence: the sentence was imposed in violation of the Constitution

or laws of the United States; the court was without jurisdiction to4

imp ose the sentence; the sentence exceeds the statutory maximum

sentence; or the sentence is “otherwise subject to collateral

a ttack.” 28 U.S.C. § 2255; s ee United States v. Cates

, 952 F.2d

149, 151 (5th Cir.), cert. denied , 504 U.S. 962 (1992).

A defendant who has been convicted and has exhausted or waived

his right to appeal is presumed to have been “‘fairly and finally

convicted.” U nited States v. Shaid

, 937 F.2d 228, 231-32 (5th Cir.

1991) (en banc) (citation omitted), c ert. denied

, 502 U.S. 1076

(1992). “[A] ‘collateral challenge may not do service for an

appeal.’” Id. at 231 (quoting United States v. Frady

, 456 U.S. 152,

165 (1982). Therefore, a defendant who raises a constitutional or

jurisdictional issue for the first time on collateral review must

show “both ‘cause’ for his procedur al default, and ‘actual

prejudice’ resulting from the error.” Id. at 232 (quoting Frady

,

456 U.S. at 168). The only exception to the cause and prejudice

test is the “extraordinary case

. . . in which a const itutional

violation has probably resulted in the conviction of one who is

actually innocent.” Id. at 232 (internal quotations and citation

omitted). The government must invoke the procedural bar in the

district court, however. U nited States v. Drobny

, 955 F.2d 990,

994-95 (5th Cir. 1992). The government did so in this case.

A.

Dismore urges that the government violated his constitutional

right to a speedy trial b y failing to apprehend him and commence

prosecution at an earlier date. He has not suggested that his5

guilty plea was involuntary.

A speedy trial violation is a nonjurisdictional defect waived

by a guilty plea. United States v. Bell

, 966 F.2d 914, 915 (5th

Cir. 1992). Dismore waived his speedy-trial claim when he entered

an unconditional guilty plea. B ell

, 966 F.2d at 915; United States

v. Smallwood

, 920 F.2d 1231, 2240 (5th Cir.), cert. denied

, 501

U.S. 1238 (1991). Furthermore, he has provided no explanation why

he could not have raised this issue on direct appeal. Shaid , 937

F.2d 228, 231-32.

B.

To obtain § 2255 relief based upon ineffective assistance of

counsel, a defendant must show not only that his attorney’s

performance was deficient, but that the deficiencies prejudiced the

defense. U nited Sta tes v. Smith , 915 F.2d 959, 963 (5th Cir.

1990). In evaluating such claims, the court indulges in “a strong

presumption” that counsel’s representation fell “within t he wide

range of reasonable professional competence.” Bridge v. Lynaugh

,

838 F.2d 770, 773 (5th Cir. 1988). To prove deficient representation, a defendant must show that his attorney’s conduct “fell below

an objective standard of reasonableness.” Strickland v. Washington

, 466 U.S. 668, 688 (1984). In the context of guilty pleas, the

“prejudice” requirement “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea

process.” H ill v. Lockhard

, 474 U.S. 52, 59 (1985). Dismore “must

show that there is a reasonable probability that, but for counsel’s2 407 U.S. 515 (1972).

3 112 S. Ct. 2686 (1992).

6 errors, he would not have pleaded guilty and would have insisted on

going to trial. Id.

Dismore suggests that this attorney was ineffective for

allowing him to plead guilty without challenging th e indictment

based upon Barker v. Wingo 2 and Doggett v. United States

. 3

Counsel’s decision not to present an argument based upon Barker was

reasonable because Barker is factually distinguishable from

Dismore’s case. In B arker

, the state obtained sixteen continuances

which delayed Barker’s trial for five years. During this time,

Barker was either in custody or free on bond. B arker

, 407 U.S. at

516-18. By contrast, Dismore’s trial was delayed because he was a

fugit ive. Dismore’s suggestion that counsel was ineffective for

failing to argue Doggett is even more tenuous because the Supreme

Court did not issue its opinion in Doggett until several months

after Dismore pleaded guilty. Id. at 50; see Doggett , 112 S. Ct.

at 2686.

Dismore suggests in conclusional terms that counsel was

ineffective for failing to preserve Dismore’s right to appeal and

advising him that he could plead nolo contendere

. Dismore did not

raise either issue in the district court.

“[I]ssues raised for the first time on appeal are not

reviewable by this [court] unless they involve purely legal

questions and failure to consider them would result in manifest

injustice.” V arnado v. Lynaugh

, 920 F.2d 320, 321 (5th Cir. 1991)7

(internal quotations omitted). The “nolo contendere” argument does

not involve a purely legal issue; therefore, the court may decline

t o consider it. I d. Although counsel did not file an appeal,

less than four months after Dismore was sentenced, counsel filed a

rule 35 motion which resulted in a substantial reduction in

Dismore’s sentence. S ee id. at 91. Dismore has failed to show

that this perform ance was objectively unreasonable. S trickland

,

466 U.S. at 6 88. Dismore’s continued incarceration has been

caused, not by counsel’s performance, but by Dismore’s inability to

abide with the terms of his probation. No manifest injustice will

result if the court refuses to consider this issue. Varnado , 920

F.2d at 321.

Dism ore’s motions for appointment of counsel and an evidentiary hearing should be denied.

AFFIRM.