May 25, 1979
KENNETH L. BROWN, PETITIONER-APPELLEE,
UNITED STATES OF AMERICA, DEFENDANT-APPELLANT.
Present: HONORABLE J. EDWARD LUMBARD, HONORABLE WALTER R. MANSFIELD, HONORABLE MURRAY I. GURFEIN, Circuit Judges.
Upon this appeal by Kenneth L. Brown from an order of the District Court for the Southern District of New York (Goettel, J.), entered on October 16, 1978, see 458 F. Supp. 182 (S.D.N.Y. 1978), denying his application pursuant to Title 28 U.S.C. § 2255 for postconviction relief, the order of the District Court is
AFFIRMED. Appellant's claim that his convictions on Counts 2, 3 and 4, entered by the District Court on June 29, 1976, were multiplicitous under the Supreme Court's decisions in United States v. Gaddis, 424 U.S. 544, 550 (1976), and Heflin v. United States, 358 U.S. 415 (1959), was waived by the failure to raise it on his direct appeal, which resulted in an affirmance by this court without opinion in an order dated July 22, 1977, United States v. Brown, Dkt. No. 77-2021, and cannot now be raised collaterally.
Moreover, the claim is not one of constitutional dimensions, see United States v. DiGeronimo, et al., F.2d , Dkt. Nos. 78-1434-37 (decided May 3, 1979), Slip Op. 2477, 2483, and was deliberately bypassed by appellant's counsel in discussions with the District Court regarding sentencing alternatives, which were designed to avoid a 25-year sentence that would have been mandated under Title 18 U.S.C. § 2114 if, in accordance with the principles of Gaddis and Heflin, the District Court had vacated the convictions under Counts 2 and 4 and had imposed a prison sentence under Count 3. Although appellant, who is now on parole, would upon a violation of parole face service of such a sentence, he would also, under the amended District Court's order, be credited with time already served.
Thus there is no fundamental miscarriage of justice of the type that would warrant collateral review of non-constitutional claims. See Wainwright v. Sykes, 433 U.S. 72 (1977); Pacelli v. United States, 588 F.2d 360 (2d Cir. 1978).
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