
USCA1 Opinion

	




          June 10, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2150                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                   THOMAS FIGUEROA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. A. David Mazzone, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                             Torruella, Selya and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Thomas Figueroa on brief pro se.            _______________            Donald  K.  Stern,  United  States  Attorney,  and  Dina   Michael            _________________                                   ______________        Chaitowitz, Assistant United States Attorney, on brief for appellee.        __________                                 ____________________                                 ____________________                 Per Curiam.   Thomas Figueroa  appeals pro  se from  the                 __________            denial of  his motion under 28  U.S.C.   2255  to vacate, set            aside, or correct his sentence.  Following his conviction for            conspiracy and  attempt to possess with  intent to distribute            500 or  more grams of  cocaine, petitioner received  a prison            term of  97  months.    This court  thereafter  affirmed  his            conviction and his  sentence.  United States v. Figueroa, 976                                           _____________    ________            F.2d  1446 (1st  Cir. 1992),  cert. denied,  113 S.  Ct. 1346                                          ____________            (1993).   Petitioner now raises three issues, two relating to            his sentence and a third involving his underlying conviction.                 He first  contends that  the  district court  improperly            calculated  the   quantity  of  cocaine  for   which  he  was            responsible  for purposes  of sentencing.   We  rejected this            identical contention  on direct  appeal, see id.  at 1460-61,                                                     ___ ___            and so  will not revisit the issue  here.  See, e.g., Barrett                                                       ___  ____  _______            v.  United States, 965 F.2d  1184, 1190 n.11  (1st Cir. 1992)                _____________            (issues decided on direct appeal  will not be reviewed  again            by way of   2255 motion).                   Petitioner's  second claim involves the determination as            to  his role in  the offense.  The  court reduced his offense            level by  two levels  on the  ground  that he  was a  "minor"            participant  under  U.S.S.G.     3B1.2(b).    Petitioner  now            asserts that the court was  clearly erroneous in declining to            impose a four-level reduction  under   3B1.2(a) for "minimal"            participation,   or  alternatively   that  his   counsel  was            ineffective in failing to seek such a reduction.  He contends            in  this regard that  his alcoholism was  so disabling during            the relevant  period that he  was incapable of  anything more            than  tangential  involvement  in  the conspiracy.    To  the            contrary,  the  evidence  of  petitioner's  participation--as            revealed especially  in two recorded  telephone conversations            he  had  with  the  government  informant  and  as  otherwise            described in our earlier opinion--demonstrates  that his role            was  more considerable than he  suggests.  We  also note that            counsel  did, in  fact, initially  propose that  a four-level            reduction be  applied.  We find no clear error on the part of            the  court, and  no substandard  performance on  the part  of            counsel.                 Petitioner's  final argument  is difficult  to decipher.            To   the   extent   he   is   alleging   "sentencing   factor            manipulation," see,  e.g., United States v.  Brewster, 1 F.3d                           ___   ____  _____________     ________            51, 55 (1st  Cir. 1993),  as the district  court assumed,  we            reject  such claim  for  the reasons  recited  in the  recent            appeal of a codefendant.   See Figueroa v. United  States, 19                                       ___ ________    ______________            F.3d 7, No. 93-2028, slip op. at 3-4 (1st Cir. 1994) (table).            To  the extent  he  is alleging  governmental entrapment  (or            ineffective assistance for failure to pursue such a defense),            it  suffices  to note  that  the  record utterly  belies  any            suggestion   of   "government   inducement"   or   "lack   of            predisposition."  United  States v. Gifford, 17 F.3d 462, 468                              ______________    _______                                         -3-            (1st Cir. 1994) (citing Jacobson v. United States, 112 S. Ct.                                    ________    _____________            1535  (1992)).   Indeed,  the two  recorded conversations  by            themselves  demonstrate that  petitioner  was anything  but a            reluctant participant.   To  the  extent he  is arguing  that            counsel improperly  dissuaded him from testifying, we observe            that petitioner  personally disclaimed any interest  in doing            so in response to inquiries from the court.  See, e.g.,  Lema                                                         ___  ____   ____            v.  United  States,  987  F.2d  48,  52-53  (1st  Cir.  1993)                ______________            (evidence that petitioner  "knowingly and voluntarily" waived            right to testify defeated ineffective assistance claim).  And            to the extent  he is seeking to vacate his  conviction due to            newly discovered evidence, we reject the claim on the grounds            that it was not advanced  below and is in any  event entirely            conclusory.                 Finally,   as  each   of   petitioner's  claims   (where            possessing the requisite factual specificity) was  subject to            refutation on the basis of the existing record, the court was            justified in dismissing the petition without a hearing.  See,                                                                     ___            e.g.,  United States v. McGill, 11 F.3d 223, 225-26 (1st Cir.            ____   _____________    ______            1993).                 Affirmed.                 _________                                         -4-
