
USCA1 Opinion

	




        December 14, 1995       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 94-2258                                    LEO R. LAVIGNE,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________        No. 95-1034                                    LEO R. LAVIGNE,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Lynch, Circuit Judges.                                            ______________                                 ____________________            Leo R. Lavigne on brief pro se.            ______________            Paul M. Gagnon, United States Attorney,  and Peter E. Papps, First            ______________                               ______________        Assistant United States  Attorney, on Motion  for Summary  Disposition        for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Pro  se petitioner Leo Lavigne appeals                      __________   ___  __            two district court orders that respectively denied his motion            to vacate his sentence  under 28 U.S.C.  2255 and  his motion            for relief from that  denial under Fed. R. Civ.  P. 60(b)(6).            We have carefully reviewed the record and the parties' briefs            on appeal.  We affirm both district court orders.  We comment            briefly on petitioner's main arguments.                      1.   Petitioner  maintains that  he is  entitled to            relief  from  his  sentence  because  his   defense  attorney            rendered ineffective  assistance by failing  to raise certain            arguments  at   petitioner's   sentencing  hearing.      More            specifically, petitioner claims that  a prior state  sentence            was  based on conduct that  was part of  his federal offense,            and  therefore  his  counsel  should  have  objected  to  the            inclusion of this sentence in the computation of petitioner's            criminal history score under   U.S.S.G.   4A1.2(a)(1) (1991).            Petitioner  also claims  that  counsel should  have moved  to            reduce  his federal  sentence by  the amount  of time  he had            already served on his  prior state sentence under  U.S.S.G.              5G1.3(b), n.3.                      Both  of these  claims  are  based on  petitioner's            conclusory assertion that his prior state sentence arose from            conduct that was part of his federal offense.  This assertion            is  based on two factual allegations:   (1) that petitioner's            state  and  federal  convictions  occurred  within  the  same                                         -3-            general time frame of  the conspiracy charged in  the federal            indictment (i.e.,  1984-1991), and (2) that  the cocaine from            petitioner's  prior conviction  was  included in  the cocaine            that  was attributed to him  at his federal  sentencing.  The            fact that  petitioner's state  and federal offenses  occurred            within the same general time frame is not alone sufficient to            establish that his state offense constituted conduct that was            part of his federal  offense.  See United States  v. Escobar,                                           ___ _____________     _______            992  F.2d 87, 90  (6th Cir. 1992); United  States v. Kerr, 13                                               ______________    ____            F.3d  203, 205-06 (7th Cir.  1993), cert. denied,  114 S. Ct.                                                _____ ______            1629  (1994).     Thus,  to  the   extent  that  petitioner's            ineffective  assistance   claim  is  based  on  this  factual            allegation, it is plainly inadequate.     Petitioner's  claim            that the cocaine from his prior state conviction was included            in the quantity of cocaine that was attributed to him  at his            federal sentencing  is  conclusively refuted  by the  record.            The  presentence report (PSR,    7A)  discloses that  the two            eight-ounce   cocaine   purchases  upon   which  petitioner's            sentence was based  occurred in April  and November of  1989.            Petitioner's  state conviction  was based  on the  seizure of            approximately five grams of cocaine from petitioner's home on            March  2, 1989.   See  State v.  Lavigne, 588  A.2d 741,  743                              ___  _____     _______            (1991).     Obviously   the  cocaine   that  was   seized  in            petitioner's home in March 1989 could not have  been included            in either of the  two eight-ounce purchases that he  made the                                         -4-                                          4            following April and  November.   Thus, petitioner's  contrary            claim is conclusively refuted by the record.                        As  petitioner's claim  that  the cocaine  from his            prior conviction  was included in the  quantity attributed to            him at his federal sentencing  is conclusively refuted by the            record, and petitioner has  not alleged sufficient facts that            otherwise  support his claim that  his state offense was part            of the conduct that led to his federal conviction, petitioner            has   failed  to  show   that  counsel  rendered  ineffective            assistance by failing to object to the inclusion of his prior            sentence  in  his criminal  history  score  under U.S.S.G.               4A1.2(a)(1) and by failing to seek a sentence reduction under            U.S.S.G.    5G1.3(b), n.3.  See Barrett v. United States, 965                                        ___ _______    _____________            F.2d 1184, 1186 (1st Cir.  1992) (summary dismissal is proper            where  a   2255  motion is  inadequate  on  its  face, or  is            conclusively refuted as to the alleged facts by the files and            records  of the case, or where the alleged grounds for relief            are  based on bald assertions without sufficiently particular            and supportive factual allegations);  Acha v. United  States,                                                  ____    ______________            910 F.2d 28, 30 (1st Cir. 1990) (court  of appeals may affirm            on any ground supported by the record).                        2.    Petitioner contends  that the  district court            erred  in denying  his Rule  60(b)(6) motion  because defense            counsel  failed  to  discuss  his  intent  to  seek  a  minor            participant adjustment with him  and further failed to inform                                         -5-                                          5            petitioner  that  he had  the  right to  appeal  the district            court's adverse ruling on  this issue.  We review  the denial            of  Rule 60(b)  motions only  for abuse  of discretion.   See                                                                      ___            Hoult  v. Hoult,  57 F.3d 1,  3 (1st  Cir. 1995).   "[A]bsent            _____     _____            exceptional  circumstances, motions under  Rule 60(b)(6) must            raise  issues not available to the  moving party before final            judgment entered."  Vasapolli v. Rostoff, 39 F.3d 27, 37 n. 8                                _________    _______            (1st  Cir.  1994)(citations  omitted).   Petitioner  has  not            alleged any  good  reason why  these  ineffective  assistance            claims  could  not have  been  raised in  his  original  2255            motion.1    Thus,  the  district  court  did  not  abuse  its            discretion in denying the Rule 60(b)(6) motion.                         As   petitioner  has  not  raised  any  meritorious            arguments, the judgment dismissing his 28 U.S.C.  2255 motion            is affirmed.  The order denying his Rule 60(b)(6) motion also               ________            is affirmed.  See Local Rule 27.1.               ________   ___                                            ____________________            1.  Petitioner  contends  that exceptional  circumstances are            present  because  he   did  not   receive  the   government's            opposition  to his  2255 motion until recently.  Even if that            is  so, we  fail to  see how  that prevented  petitioner from            cataloging counsel's  alleged errors in his  original motion.            Moreover,   petitioner failed  to raise this  argument below,            therefore it is not properly before us.                                          -6-                                          6
