February 19, 1993

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 92-1291

                      ROBERT A. WHITTEMORE,

                      Plaintiff, Appellant,

                                v.

                    UNITED STATES OF AMERICA,

                       Defendant, Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]
                                                     

                                           

                              Before

                       Breyer, Chief Judge,
                                          
               Higginbotham,* Senior Circuit Judge,
                                                  
                    and Boudin, Circuit Judge.
                                             

                                           

  David M. Sanders for appellant.
                  
  F. Mark Terison, Assistant United States Attorney, with whom
                 
Richard S. Cohen, United States Attorney, and James M. McCarthy,
                                                             
Assistant United States Attorney, were on brief for appellee.

                                           

                                           

                   
*Of the Third Circuit, sitting by designation.

          Higginbotham, Senior Circuit Judge.  Petitioner, Robert
                                            

A. Whittemore,  appeals from  the denial of  his second  petition

under  28  U.S.C.   2255 to  set  aside,  vacate  or correct  his

sentence.  The district court dismissed the petition as an "abuse

of the writ".  We affirm.

                                I.

          In June 1988,  Whittemore was convicted of one count of

conspiracy to possess with intent to distribute  cocaine, and two

counts of knowingly and  intentionally distributing a quantity of

cocaine.  At  trial the prosecution  showed that Whittemore  sold

Tyrone  Gray, a  government informant,  an  ounce of  cocaine for

$1,500  on  one occasion,  and  two  kilograms worth  $72,000  on

another occasion.   The  prosecution also showed  that Whittemore

conspired with Gray  and a  woman named Lisa  Obremski to  obtain

cocaine in Florida and distribute it in Maine.

          Following  his  conviction, Whittemore  entered  into a

cooperation agreement with the government in which  he waived the

right of direct appeal of his conviction.  The government in turn

gave Whittemore "use immunity" for his cooperative statements and

agreed  to  notify   the  sentencing  court  of  the   extent  of

Whittemore's cooperation.  Thereafter, in August 1988, Whittemore

was sentenced to imprisonment  for 15 years on all  three counts,

to  be served concurrently, and 10 years of supervised release on

the two counts of distribution, to run concurrently.

          On  April 25,  1991, Whittemore  wrote to  the district

court,  requesting the court to  issue an order  stating that his

sentence was subject to parole.  The court treated the letter  as

a motion to correct  a sentence under Rule  35(a) of the  Federal

Rules of Criminal  Procedure.   The court held  that the  charges

under  which Whittemore was  convicted were subject  to the Anti-

Drug Abuse Act of 1986 and therefore did not permit parole.  

          On August 19, 1991,  Whittemore filed pro se  his first
                                                      

 2255  petition.  In this first petition, Whittemore again raised

the  issue  of  whether   he  was  appropriately  precluded  from

consideration for parole by the provisions of the Anti-Drug Abuse

Act of 1986.  On  October 17, 1991, the district court  once more

found  that Whittemore's  conviction was  clearly subject  to the

non-parolable provisions  of the  Anti-Drug Abuse Act  and denied

his petition without an evidentiary hearing.

          On November 12, 1991, Whittemore filed, again pro se, a
                                                              

second     2255 petition.    This time,  Whittemore  raised three

issues  as grounds  to vacate  or correct  his sentence.   First,

Whittemore claimed that Tyrone Gray  gave false testimony for the

prosecution  at Whittemore's  trial,  thereby causing  him to  be

convicted.   Second,  he claimed  that Lisa  Obremski gave  false

                               -3-
                                3

testimony  at  his   sentencing  hearing,  thereby   causing  the

sentencing  judge  to  impose  a  longer  term  of  imprisonment.

Finally,  Whittemore  claimed  that  he was  entitled  to  credit

against his sentence for time served prior to his conviction.

          On December  3, 1991,  the government moved  to dismiss

Whittemore's second  petition on the ground,  among other things,

that Whittemore  alleged claims  in the  petition which he  could

have  asserted in  the earlier  petition.   On December  7, 1991,

Whittemore  responded to the government's motion.  In a letter to

the court,  Whittemore explained  why his second  petition should

not be dismissed.  Whittemore wrote in part:

          I did  not know  that when  I filed  my first  motion I
          should  have put  these other  points in  as well.   My
          first  motion was done by  a friend that  worked in the
          law  library.   Had I  understood this their  [sic] are
          some other points I would have made on this last one.

          On  January  15,   1992,  the  district   court  denied

Whittemore's second petition without an evidentiary hearing.  The

court found that the government had carried its burden of showing

that Whittemore had abused the writ of habeas  corpus.  The court

also determined that Whittemore  had failed to show  that failure

to entertain his second petition would result in a miscarriage of

justice.  As to Whittemore's claim that he was entitled to credit

for time served prior to his conviction, the court concluded that

Whittemore  had not  exhausted  his  administrative  remedies  by

                               -4-
                                4

failing  to pursue his claim with the  Bureau of Prisons.  In any

event, the court  reasoned, even if Whittemore had  exhausted his

administrative remedies, he  would not be entitled  to credit for

time served because he was out on bail and not incarcerated prior

to his conviction.

          On appeal, Whittemore, now represented by  counsel, has

abandoned his claim  that he  is entitled to  credit against  his

sentence  for time served  prior to conviction.   Whittemore also

does  not  challenge  on  appeal  the  court's  finding  that  no

fundamental miscarriage of justice would result from a failure to

entertain  the claims in the  second   2255  petition.1  Instead,

Whittemore presents  three main  arguments: 1) that  the district

court erred in not giving him notice that his second petition was

subject to  dismissal for abuse of the writ; 2) that the abuse of

the writ  standard  is  inapplicable  because his  first  pro  se
                                                                 

petition  "was filed  out of  ignorance" and,  therefore  "had no

                       

   1In responding to the district court's finding that no
   miscarriage of justice would result from denying his second
   petition, Whittemore writes in his brief on appeal: "It is
   not Mr. Whittemore's purpose within the context of this
   appeal to challenge the district court `miscarriage of
   justice' analysis."  Appellant's Brief at 8-9.  Accordingly,
   we need not address in detail the court's miscarriage of
   justice analysis. It suffices to say that we would agree
   with the district court's conclusion that, under McCleskey
                                                             
   v. Zant, 111 S.Ct. 1454 (1991), no miscarriage of justice
          
   would result from the denial of Whittemore's second
   petition.

                               -5-
                                5

substantive meaning"; and 3) that, even  if the abuse of the writ

analysis is applicable to the second petition, he did satisfy the

burden to show  cause for his failure to raise  his claims in the

earlier  2255 petition.

                               II.

          The   district  court  correctly  determined  that  the

question  of whether a petitioner  has abused the  writ of habeas

corpus is governed by  McCleskey v. Zant, 111 S.Ct.  1454 (1991).
                                        

In McCleskey, the Supreme Court held that "a petitioner can abuse
            

the writ  by raising  a claim  in a subsequent  petition that  he

could have raised in the first, regardless of whether the failure

to  raise it  earlier stemmed from  deliberate choice."  Id., 111
                                                            

S.Ct. at  1468.  The burden  is on the government  to first plead

abuse of the  writ. Id. at 1470.   The government satisfies  this
                       

burden "if, with clarity and particularity, it notes petitioner's

prior  writ history, identifies  the claims  that appear  for the

first time, and alleges that petitioner has abused the writ." Id.
                                                                 

          The burden to  disprove abuse of the writ  then becomes

petitioner's. Id.   In order  to satisfy this  burden, petitioner
                 

must  show cause for failing to raise earlier the claim presented

in the subsequent petition.  Id.  To show cause,  petitioner must
                                

                               -6-
                                6

show  that  some   external  impediment,  such   as  governmental

interference or  the reasonable unavailability of  the factual or

legal  basis for a claim,  prevented the claim  from being raised

earlier.  Id.  at 1472.   If  petitioner  cannot show  cause "the
             

failure to raise the claim in an earlier petition may nonetheless

be  excused if he or she can  show that a fundamental miscarriage

of justice would result  from a failure to entertain  the claim."

Id. at 1470.
   

                                A.

          As a  preliminary matter,  Whittemore argues  on appeal

that the district court erred  in not giving him notice  that his

second petition was subject  to dismissal.  Whittemore's argument

goes  as follows: Rule 9(b)  of the Rules  Governing Section 2255

Proceedings provides that a second or successive  2255 motion may

be  dismissed if  the  court finds  that petitioner's  failure to

assert  grounds  in  an  earlier petition  constituted  abuse  of

process.  Following Rule 9(b) in the appendix of forms is a model

form to  be  used in   2255 petitions.   This  form "was  clearly

drafted for the  benefit of the  pro se litigant."   The form  is
                                       

designed to give the  pro se petitioner specific notice  that the
                            

petition is subject to dismissal.  Whittemore, at the time of the

filing of his second   2255 petition, was a pro  se litigant. The
                                                   

district  court never  sent  the Rule  9(b)  form to  Whittemore.

                               -7-
                                7

Therefore, Whittemore  argues,  this  court  should  reverse  the

district court's order dismissing his second petition.

          We find  this argument unconvincing.   The fact  of the

matter is Whittemore did have notice that his second petition was

subject to dismissal.  The form which he used to file the first  

2255 petition contained the warning: "CAUTION: If you fail to set

forth  all ground[s]  in  this motion,  you  may be  barred  from

presenting  additional grounds  at a  later date."   Furthermore,

Whittemore  actually responded  to  the  government's  motion  to

dismiss  his second  petition.   In  a  letter to  the court,  he

explained that at the time he filed his first petition he did not

know that he  was supposed to present all of  his claims at once.

Finally, we have never held in this circuit that failure  to give

specific notice to a  petitioner is alone grounds to  reverse the

district court's dismissal of a   2255  petition for abuse of the

writ, especially when,  as here, the petitioner had actual notice

that  the petition was  subject to  dismissal. See  McLaughlin v.
                                                                 

Gabriel,  726 F.2d 7,  10 (1st Cir. 1984)  (pleading abuse of the
       

writ  puts petitioner on notice to show cause why claim raised in

subsequent petition was not brought in an earlier petition).

                                B.

          Whittemore next argues that  the McCleskey abuse of the
                                                    

writ  standard  should not  be  applied  to his  second  petition

                               -8-
                                8

because  his  first petition  "was filed  out of  ignorance" and,

therefore  "had  no substantive  meaning."      As we  understand

Whittemore's argument, the first    2255 petition raised an issue

which  the court  had  already  denied  in Whittemore's  Rule  35

motion; namely the issue  of whether his sentence was  subject to

parole.   The  district  court,  in  denying  the  first     2255

petition,  did not rule  on the merits  of the  claim, since that

claim had already been decided in the Rule 35 motion.  Therefore,

Whittemore  argues, for  purposes of  determining whether  he has

abused the writ, the first   2255 petition should  not count, and

the second petition should in effect be considered the first.

          Whittemore  has  not cited  any  case  to support  this

rather ingenious proposition.   In  any event, the  point of  the

doctrine of abuse  of the writ, as explained in McCleskey, is not
                                                         

what  petitioner alleges in the first   2255 petition, but rather

what  petition does not allege in the first petition.  McCleskey,
                                                                

111  S.Ct. at  1470.   Thus, it  is not  relevant that  the claim

Whittemore made in the  first petition was one which  had already

been decided by  the court.   The point is  that in bringing  the

first petition  Whittemore was  obligated to present  all of  the

claims which he now raises in the second petition.

                                C.

                               -9-
                                9

          Whittemore's  remaining contention is that, even if the

abuse  of the writ analysis is applicable to his second petition,

he did satisfy the burden to  show cause for his failure to raise

his  claims   in  the  earlier   2255   petition.    Specifically

Whittemore explains that the  issues raised in the second    2255

motion were not raised in the  first   2255 motion because he did

not have the funds to hire an attorney, he was not represented by

counsel at the time  of both motions, and he  was unfamiliar with

the law.  

          In  Andiarena v. U.S., 967 F.2d 715 (1st Cir. 1992), we
                               

considered the pro se appeal  of a petitioner from the  denial of
                     

his second   2255 petition by  the district court.  As an attempt

to establish cause  for failure to  raise his claims  in a  prior

petition,  petitioner explained  that at  the time  he filed  his

first petition he did  not have access to the transcripts  of his

trial.   We  held petitioner's  explanation insufficient  to show

cause. Andiarena, 967 F.2d  at 718.  We  reasoned that under  the
                

standard  established in  McCleskey,  "to  establish `cause'  for
                                   

failure to raise a claim in a prior petition, one  must show that

some external impediment, such  as government interference or the

reasonable unavailability  of the factual  and legal basis  for a

claim prevented it from being raised earlier." Id.  
                                                  

                               -10-
                                10

          Here, Whittemore has failed  to establish cause for his

failure to  raise his claims in the  first petition.  The factual

and legal basis  for Whittemore's   2255 petition is that the key

prosecution witness  at his  trial gave false  testimony, causing

him  to be convicted,  and that a  key witness at  his sentencing

hearing  also gave  false  testimony, causing  him  to receive  a

longer term  of  imprisonment.   Whittemore  has  not  shown  the

"reasonable unavailability  of the  factual and legal  basis" for

his  claim.   Nor  has  Whittemore  shown  some  other  "external

impediment" for his  failure to  raise the  claim.   Whittemore's

basic  claim is that his  sentence should be  vacated because two

key prosecution witnesses lied.   This is a straightforward claim

which he could have presented at the time of his  first petition,

even though  he did not have  the funds to hire  counsel and even

though he was unfamiliar with the law.  

          The Supreme Court held in McCleskey that a petitioner's
                                             

explanation for failing to  raise a claim in an  earlier petition

must be based on some "objective factor external to the defense."

McCleskey, 111 S.Ct.  at 1470.   The reasons Whittemore  advances
         

for failing  to raise  his claim  in the  first petition  are not

based  on any  objective  factor external  to  his defense.    We

therefore cannot rationally conclude that Whittemore's ability to

                               -11-
                                11

raise  his claim in the  earlier petition was  somehow impeded by

the fact that he was acting pro se at the time.  
                                  

          For the foregoing reasons, we  will affirm the order of

the district court dismissing  Whittemore's second petition under

28 U.S.C.   2255.   

                               -12-
                                12
