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U.S. v. BRASWELL

No. 05-35009.

501 F.3d 1147 (2007)

UNITED STATES of America, Plaintiff-Appellee, v. Cyrus D.A. BRASWELL, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed September 4, 2007.

Attorney(s) appearing for the Case

Darla J. Mondou, Marana, AZ, argued the cause and was on the brief for the defendant-appellant.

Richard L. Pomeroy, Assistant United States Attorney, District of Alaska, Anchorage, AK, argued the cause and was on the briefs for the plaintiff-appellee; Nelson P. Cohen, United States Attorney, District of Alaska, Anchorage, AK, and Timothy M. Burgess, United States Attorney, District of Alaska, Anchorage, AK, were also on the briefs.

Before: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and MARSHA S. BERZON, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a habeas petitioner's argument that his indictment was constitutionally defective is procedurally barred because of his failure to raise it on direct appeal.

I

On July 15, 1997, Cyrus Braswell was indicted by a grand jury in Anchorage, Alaska on four counts of distribution of a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1); one count of possession of a Schedule II controlled...

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