
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2322                                   ANGEL RODRIGUEZ,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Angel Rodriguez on brief pro se.            _______________            Donald K. Stern, United  States Attorney, and  Richard L. Hoffman,            _______________                                __________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                  December 12, 1997                                 ____________________                      Per Curiam.  Appellant Angel Rodriguez appeals from                      __________            the denial of his motion filed  under 28 U.S.C.   2255.   For            the following reasons, we agree with the district court  that            the motion was meritless.                      1.   Appellant's claim  that the forfeiture  of his            property  was excessive  under the  Eighth  Amendment is  not            cognizable in a   2255 proceeding since  appellant seeks only            relief  from a  monetary-type penalty  and  not release  from            confinement.   See Smullen v.  United States, 94 F.3d  20, 25                           ___ _______     _____________            (1st Cir.  1996)  (holding that  a  claim that  defendant  is            entitled to  a reduced  restitution order  falls outside  the            scope of   2255).                      2.    Appellant's   argument  that  the  forfeiture            violates the  prohibition against  double jeopardy  fails for            the simple reason that the forfeiture was imposed in the same                                                                     ____            proceeding that resulted in appellant's  conviction.  Compare            __________                                            _______            Department  of Revenue  v.  Kurth Ranch,  511  U.S. 767,  784            ______________________      ___________            (1994) (the collection of a  tax on dangerous drugs sought in            a   separate  proceeding   initiated   subsequently  to   the                ________                           ____________            termination  of  the  proceeding  in  which  defendants  were            convicted violates the prohibition against double jeopardy; a            second  punishment   "must  be   imposed  during   the  first            prosecution or not at all").                      3.    Appellant's  claims   regarding  the  alleged            ineffective assistance rendered by his trial counsel were not                                         -2-            presented  to the district  court in the    2255 motion.   We            therefore  will  not consider  them  for  the first  time  on            appeal.   See Dziurgot  v. Luther, 897  F.2d 1222,  1224 (1st                      ___ ________     ______            Cir. 1990)  (per curiam).   Appellant's ignorance of  the law            does not provide  an excuse for this default.   See Eagle Eye                                                            ___ _________            Fishing Corp.  v. United  States Dep't  of Commerce, 20  F.3d            _____________     _________________________________            503, 506 (1st  Cir. 1994) ("the right  of self-representation            is  not  a license  not  to  comply  with relevant  rules  of            procedural and  substantive law")  (internal quotation  marks            and citations omitted).                      4.  In any event, appellant's failure to assert all            but one of  his claims in his first   2255 motion is an abuse            of the  writ under  McCleskey v. Zant,  499 U.S.  467 (1991).                                _________    ____            Again, appellant's  pro se status  and ignorance  of the  law            does  not  constitute  "cause"   sufficient  to  excuse  this            omission.   See, e.g., Saahir  v. Collins, 956 F.2d  115, 118                        ___  ____  ______     _______            (5th Cir.  1992) (ignorance  of the law  is not  an objective            external  impediment); Rodriguez  v.  Maynard, 948  F.2d 684,                                   _________      _______            687-88  (10th Cir. 1991)  (where the factual  and legal bases            for the new claims existed when the first habeas petition was            filed, petitioner's  ignorance of  the legal  significance of            those  claims does  not amount  to cause).   Nor,  obviously,            would failure to consider these  claims on appeal amount to a            fundamental  miscarriage of justice.  See Andiarena v. United                                                  ___ _________    ______            States, 967 F.2d 715, 719  (1st Cir. 1992) (per curiam) (this            ______                                         -3-            narrow   exception  applies   only  where   a  constitutional            violationlikely caused the conviction of an innocent person).                      The one  claim that  appellant did  present in  the            first    2255 motion  -- the government's  alleged sentencing            entrapment and  counsel's alleged  ineffective assistance  in            connection  therewith -- cannot  be raised again  because the            district court disposed of it  on the merits in that  first              2255  proceeding.    See Rule  9(b)  of  the  Rules Governing                                 ___            Section 2255 Cases ("[a]  second or successive motion  may be            dismissed if the judge finds that  it fails to allege new  or            different  grounds for relief and the prior determination was            on the merits").                      5.   It  follows that  the district  court did  not            abuse its discretion in not holding a hearing  on appellant's            forfeiture claims.  See United States v. McGill, 11 F.3d 223,                                ___ _____________    ______            225-26 (1st Cir. 1993).                        The judgment of the district court is affirmed.                                                            ________                                         -4-
