
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                              ____________________        No. 94-2070                                   PETER M. CUMMING,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Peter M. Cumming on brief pro se.            ________________            Jay   P.  McCloskey,  United  States  Attorney,  and  Margaret  D.            ___________________                                   ____________        McGaughey, Assistant United States  Attorney, on Memorandum of Law  in        _________        Support of Motion for Summary Disposition, for appellee.                                 ____________________                                    August 4, 1995                                 ____________________                      Per Curiam.   Peter M. Cumming appeals pro  se from                      __________                             ___  __            the district court's  dismissal of his motion  to vacate, set            aside, or correct sentence pursuant to 28 U.S.C.   2255.  The            government has moved for summary disposition, and Cumming has            filed an  opposition and a  brief.   We grant the  motion and            affirm.                      The present   2255 motion is Cumming's second.  The            first such motion -- alleging double jeopardy and ineffective            assistance  of trial and  appellate counsel --  was dismissed            without  prejudice because  Cumming's appeal  from conviction            was  pending in  this court.   Before  the direct  appeal was            decided, Cumming filed  this   2255  motion alleging that  18            U.S.C.    4111 was unconstitutional  and had deprived  him of            equal protection  of the laws.   Cumming also moved  to amend            the second    2255  motion to  assert  a claim  that a  third            attorney  involved  in  his  case  had  rendered  ineffective            assistance.  Subsequently, Cumming's conviction and  sentence            were affirmed,  United States  v. Cumming,  No. 93-1960  (1st                            _____________     _______            Cir. Aug. 9, 1994), and shortly thereafter the district court            adopted a  magistrate-judge's recommendation  that (1) the               2255 equal protection  claim be dismissed because  it clearly            lacked  merit, and  (2) the  motion to  amend to  add another            ineffectiveness  of counsel claim be denied because the first               2255  motion  had  been  dismissed  without  prejudice  to            Cumming's  right to  refile  all  his ineffectiveness  claims            after the decision in his direct appeal.                      In deciding  Cumming's direct  appeal, we  rejected            the  claim that his  prosecution for unlawful  importation of            controlled   substances  was   barred   by  double   jeopardy            principles because of Cumming's British conviction on related            charges.1  We  also decided that Cumming could  not claim any            violation of  18 U.S.C.    4111 because those  provisions are            only  applicable  to  offenders  transferred from  a  foreign            country for the  express purpose of completing  the execution            of a foreign  sentence in the  United States.   18 U.S.C.                4100(a), 4101(j); United States v. Gambino, 729 F. Supp. 954,                              _____________    _______            968  (S.D.N.Y. 1990),  aff'd, 968  F.2d 227  (2d Cir.  1992).                                   _____            Cumming,  slip op. at  4.  It is  not disputed that Cumming's            _______            return  to the United States  was voluntary, and not pursuant            to the above treaty provisions.                      As  an  initial  matter  we  note   that  Cumming's            appellate brief and answer to the government's motion make no            attempt  whatsoever to articulate  an argument in  support of            his equal protection ground, thereby waiving it.  Martinez v.                                                              ________            Colon, 54  F.3d 980, 990 (1st Cir. 1995).  Even if we were to            _____                                            ____________________            1.  In 1992, Cumming was approved for  transfer to the United            States  to complete  the execution  of  his British  sentence            under treaty provisions  codified at 18 U.S.C.     4100-4111,            but declined the transfer.  Cumming was released from British            custody in February  1993 after serving the  complete foreign            sentence.                                         -3-            address  that  claim,  it  is  clear  that  Cumming's  double            jeopardy premise has simply been  reworked under the guise of            equal protection.  That claim, at bottom, seeks relief from a            sentence which Cumming believes constitutes double punishment            for  the  same  offenses.    But,  we  have already  resolved            Cumming's  double jeopardy argument and issues disposed of on            direct  appeal may  not be  reviewed in  a subsequent    2255            proceeding  absent an  intervening  change in  the  law or  a            showing  that manifest injustice would otherwise result.  See                                                                      ___            Singleton  v. United  States, 26  F.3d  234, 240  (1st Cir.),            _________     ______________            cert. denied,  115 S. Ct.  517 (1994); Campbell  v. Blodgett,            _____ ______                           ________     ________            982 F.2d  1321, 1326 (9th  Cir. 1992) ("A petitioner  may not            create a different ground merely by alleging different facts,            asserting different legal theories,  or couching his argument            in different language."); see also Reed v. Farley, 114 S. Ct.                                      ___ ____ ____    ______            2291, 2297 (1994).  Nothing  indicates that any exception  to            that rule applies here.                      In addition, we find no abuse  of discretion by the            district  court in denying  the motion to  amend, but decline            the government's invitation to decide the merits of Cumming's            ineffective assistance  of counsel  claims.   This court  has            generally adhered to the view  that such assessments are best            made by the district judge in the first instance.  Knight  v.                                                               ______            United  States,  37 F.3d  769,  774 (1st  Cir.  1994); United            ______________                                         ______            States v. Carter,  815 F.2d 827, 829 (1st  Cir. 1987); United            ______    ______                                       ______                                         -4-            States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983).  Since            ______    ________            the district court has left the door open to Cumming to press            his ineffectiveness claims, Cumming has the option to file  a              2255 motion strictly limited  to those claims without being            subjected to dismissal for abuse of the writ.  Cf. Rule 9(b),                                                           ___            Rules Governing   2255 Proceedings (successive motions may be            dismissed).                      The judgment of the district court is affirmed.                                                            ________                                         -5-
