
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 97-1398                                    SHMUEL DAVID,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Nancy Gertner, U.S. District Judge]                                           ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Peter Goldberger, with whom Pamela A. Wilk was on brief, for               ________________            ______________          appellant.               Robert L.  Peabody, Assistant  United States  Attorney, with               __________________          whom Donald K.  Stern, United States Attorney, was  on brief, for               ________________          appellee.                              _________________________                                   January 27, 1998                              _________________________                    SELYA, Circuit Judge.  Some four years ago, petitioner-                    SELYA, Circuit Judge.                           _____________          appellant  Shmuel David filed a motion for post-conviction relief          pursuant  to  28 U.S.C.     2255  (1994).1   The  district  court          eventually  denied  the petition  without holding  an evidentiary          hearing.  David appeals.  We affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    On direct appeal, we described the petitioner's case as          "involv[ing]  a spider  web of  drug dealing,  with David  at the          web's center,"  United States  v. David, 940  F.2d 722,  726 (1st                          _____________     _____          Cir. 1991) (David I), and  we proceeded to affirm his convictions                      _______          on a myriad of charges.  Inasmuch  as the predicate facts are set          out at length  in that opinion, we  offer only a pr cis  of those          events to set the stage for the instant appeal.                    In David I,  the government charged that,  during 1986,                       _______          1987, and 1988,  David, thirteen codefendants, and  various other          persons  engaged in extensive cocaine trafficking.  Mirroring the          prosecution's  theory that  a  shift  from  domestic  to  foreign          suppliers transmogrified the  operation, the indictment described                                        ____________________               1Congress   subsequently  enacted   the  Antiterrorism   and          Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,          110 Stat.  1214 (codified  in scattered  sections of  28 U.S.C.).          The new law took effect on April 24, 1996.  The Supreme Court has          determined,  in  general, that  AEDPA  does not  apply  to habeas          petitions that were pending on AEDPA's effective date.  See Lindh                                                                  ___ _____          v. Murphy, 117 S. Ct. 2059, 2067-68 (1997) (discussing amendments             ______          to habeas  procedures in cases  brought under 28 U.S.C.    2254);          see also Martin v. Bissonette, 118 F.3d 871,  874 (1st Cir. 1997)          ___ ____ ______    __________          (applying  Lindh).   We believe  that  this rationale  applies to                     _____          section 2255 motions  (which are, after all, a  species of habeas          petitions).  Thus, we measure  the petitioner's case against pre-          AEDPA benchmarks.                                          2          two conspiracies:  one beginning  in 1986 and ending in  March of          1988, and the other taking up where the first left off and ending          later that  year.  Following a nine-week  trial, a jury found the          petitioner guilty on  twenty-two counts,  including charges  that          he:  (a)  engaged in a continuing criminal  enterprise (CCE), see                                                                        ___          21 U.S.C.    848; (b)  participated in both conspiracies,  see 21                                                                     ___          U.S.C.   846; (c) possessed  cocaine with intent to distribute on          several occasions, see 21 U.S.C.   841(a)(1); and (d) facilitated                             ___          numerous drug transactions by using the telephone, see 21  U.S.C.                                                             ___            843(b).                    At  the   disposition  hearing,  the   district  court,          employing  the January 1988 edition of the sentencing guidelines,          grouped  related offenses,  see  USSG  3D1.1(a);  used  available                                      ___          drug-quantity evidence  to fix  a base offense  level of  36, see                                                                        ___          USSG  2D1.1; added two levels  for possession of a firearm during          the commission of an offense, see USSG  2D1.1(b); added four more                                        ___          levels for the petitioner's leadership role, see USSG  3B1.1; and                                                       ___          subtracted  two levels for acceptance of responsibility, see USSG                                                                   ___           3E1.1.  In the end,  the district court sentenced the petitioner          within  the  computed  guideline  sentencing  range,  imposing  a          thirty-year incarcerative term  on the CCE and  various "grouped"          possession  counts and  shorter  periods  of  immurement  on  the          remaining charges.  The court designated all the sentences to run          concurrently.                    Represented by new counsel, David appealed.  We vacated          the   conspiracy  convictions  as   violative  of   the  multiple                                          3          punishments  prong of  the  Double  Jeopardy  Clause,  given  the          conviction and sentence on the encompassing CCE count.  See David                                                                  ___ _____          I, 940 F.2d at 738  (citing United States v. Rivera-Martinez, 931          _                           _____________    _______________          F.2d 148,  152-53 (1st  Cir. 1991)).   In all other  respects, we          affirmed the convictions and the corresponding sentences.                    On  January  7,  1994,  while  still  incarcerated, the          petitioner  retained fresh counsel  and filed a  motion for post-          conviction relief in  the district court.   Judge Gertner assumed          responsibility  for  the  motion  in  place  of  the  late  Judge          McNaught,  who  had  presided  over the  trial  and  had  imposed          sentence.   She ultimately denied it  on January 2, 1997, but did          not  deign to  hold an  evidentiary hearing.   Without  missing a          beat, the  petitioner  changed counsel  again.   His new  lawyers          filed a  motion for reconsideration  on February 26,  1997, which          Judge Gertner also  denied.  The  petitioner appeals solely  from          the original denial of post-conviction relief.                                         II.                                         II.                                         ___                                       Analysis                                       Analysis                                       ________                    The  petitioner  advanced  three  claims  in the  court          below.   Two of  these claims  related  to the  propriety of  the          sentencing calculations; one questioned  the firearms enhancement          and the second  questioned the upward adjustment for  role in the          offense.  The  remaining claim posited ineffective  assistance of          trial counsel, stemming not only from an alleged failure to raise          this  pair of  sentencing objections,  but  also from  an alleged          failure promptly to relay a potentially favorable plea bargain to                                          4          the petitioner.  On appeal,  David has not continued his campaign          against  the role-in-the-offense  adjustment,  and  we deem  that          challenge abandoned.   See, e.g., United  States v. Zannino,  895                                 ___  ____  ______________    _______          F.2d 1, 17  (1st Cir. 1990).   He does, however, renew  the other          two claims.  After a brief introduction, we address each of them.                                          A.                                          A.                                          __                                     Introduction                                     Introduction                                     ____________                    Section 2255  is not a  surrogate for a  direct appeal.          Rather, the statute  provides for post-conviction relief  in four          instances, namely, if  the petitioner's sentence (1)  was imposed          in  violation of the Constitution, or  (2) was imposed by a court          that  lacked jurisdiction, or (3) exceeded the statutory maximum,          or (4) was  otherwise subject to collateral attack.   See Hill v.                                                                ___ ____          United  States, 368 U.S. 424, 426-27 (1962) (construing statute).          ______________          The  catch-all fourth category includes only assignments of error          that reveal  "fundamental defect[s]" which, if  uncorrected, will          "result[]   in   a   complete   miscarriage   of   justice,"   or          irregularities  that  are  "inconsistent   with  the  rudimentary          demands of  fair procedure."  Id. at 428.   In other words, apart                                        ___          from  claims  of  constitutional  or  jurisdictional  nature,   a          cognizable   section   2255   claim   must  reveal   "exceptional          circumstances" that make  the need for redress evident.   See id.                                                                    ___ ___          The burden is  on the petitioner to  make out a case  for section          2255 relief.  See Mack v. United  States, 635 F.2d 20, 26-27 (1st                        ___ ____    ______________          Cir. 1980).                                          B.                                          B.                                          __                                          5                               The Firearms Enhancement                               The Firearms Enhancement                               ________________________                    The   petitioner  asserts  that,  as  of  the  date  of          disposition  (August 1, 1989),  the guidelines did  not authorize          the  two-level sentence enhancement imposed by Judge McNaught for          the use of a firearm   an enhancement that tacked at least sixty-          seven  additional months  onto  David's  sentence.    This  claim          presents a bit  of a moving target.   In his section  2255 motion          and  in  the court  below,  David  asseverated that  a  two-level          increase only  could have materialized if it  were authorized for          the CCE conviction,  and that the two-level  firearms enhancement          was unavailable because the applicable sentencing guideline, USSG           2D1.5, did not make reference to it.                    Having  secured yet a  fourth set  of attorneys  in the          interim,  the petitioner  recast his  argument in his  motion for          reconsideration, and now  has come hard about.  In this venue, he          barely mentions section  2D1.5, but, rather, shapes  his argument          around USSG  2D1.1.   Paying very little heed to the fact that he          initially told the  lower court that section 2D1.1  did not apply          at all, he now maintains that section 2D1.1  is the correct focal          point, but that it cannot support the enhancement.                    We  approach  this  moving   target  with  considerable          caution.   It is well established that a  party may not unveil an          argument in the court of appeals that he did not seasonably raise          in the district court.  See United  States v. Slade, 980 F.2d 27,                                  ___ ______________    _____          30 (1st Cir. 1992); see also Singleton v. United States,  26 F.3d                              ___ ____ _________    _____________          233, 240  (1st Cir. 1994)  (invoking this principle in  a section                                          6          2255 case);  United States  v. Mariano, 983  F.2d 1150,  1158 n.9                       _____________     _______          (1st Cir. 1993) (invoking this principle in respect to sentencing          issues).                    To  apply the  principle  here,  we  must  measure  the          petitioner's  current argument against that limned in his section          2255 motion and advanced  before Judge Gertner, not  by reference          to  the theory  that he  belatedly  surfaced in  his request  for          reconsideration.2  See  Barrett v. United States,  965 F.2d 1184,                             ___  _______    _____________          1187  n.3 (1st  Cir. 1992);  Mackin v. City  of Boston,  969 F.2d                                       ______    _______________          1273, 1278-79 (1st Cir. 1992); In re Sun Pipe Line Co.,  831 F.2d                                         _______________________          22, 24  (1st Cir. 1987).   Although the petitioner  contends that          the argument  he  makes  today is  merely  a  more  sophisticated          statement of a refrain contained in his section 2255 motion, that          is  plainly  not  the  case.   The  two  arguments  are  markedly          different.  Consequently, the newer version is by the boards.                    The petitioner  correctly reminds us that  an appellate          court has  discretionary power to  override a forfeiture  of this          type.  To justify deploying this seldom-used power, however,  the          newly emergent contention must be one that practically guarantees          the appellant's success.  See Slade,  980 F.2d at 31.  Here,  the                                    ___ _____          forfeited argument is  considerably less than robust.  We explain          briefly.                    The  firearms enhancement  about  which the  petitioner                                        ____________________               2Even were we disposed to consider the argument  advanced in          the petitioner's untimely  motion for  reconsideration, we  could          not do so because the petitioner has not appealed from the denial          of that  motion.   See Barrett v.  United States, 965  F.2d 1184,                             ___ _______     _____________          1188 (1st Cir. 1992).                                          7          complains arose out of  a discrete set of facts.  In June 1987, a          drug courier  by the  name of  Filin, employed  by David  and his          confederates, tried to purloin a  shipment of cocaine by faking a          robbery.    The  petitioner  saw through  the  charade  and later          threatened  Filin  at  gunpoint   in  an  attempt  to  coerce   a          confession.                    Under  the sentencing regime imposed by the guidelines,          the law in effect on the date of the disposition hearing governs,          absent ex post facto concerns.   See United States v. Harotunian,                 __ ____ _____             ___ _____________    __________          920 F.2d 1040, 1041-42 (1st Cir. 1990).  Hewing to this line, the          government defends the enhancement by pointing to the  version of          USSG  2D1.1(b)(1)  that took  effect on January  15, 1988.   That          guideline provided for a two-level upward adjustment if a firearm          "was  possessed  during   commission  of  the  offense."     USSG           2D1.1(b)(1).  The government concedes that "the offense" must be          an offense to which the guidelines attached, thus restricting the          enhancement in this case to the two drug distribution counts that          transpired in  1988, namely, counts 15 and  16.3  Notwithstanding          this  concession, the government  posits that the  phrase "during          commission  of the offense"  requires reference to  the "relevant          conduct" guideline, which  in its 1988 iteration  indicated (with          certain  exceptions not germane here) that an "offense" generally                                        ____________________               3These  counts,  each of  which  charged a  violation  of 21          U.S.C.    841(a)(1),  are  the  only  post-guidelines  counts  of          conviction  that are legally  capable of supporting  the firearms          enhancement.   The CCE  sentencing paradigm  did not provide  for          such an enhancement, and the two conspiracy convictions have been          vacated.                                          8          is deemed  to include  "all acts  . .  . committed  or aided  and          abetted  by  the  defendant  .  .  .  that  occurred  during  the          commission  of the offense of conviction," USSG  1B1.3(a)(1), and          that, with respect to "grouped" offenses, see  USSG  3D1.2(d), an                                                    ___          "offense" generally  is deemed to include all "acts and omissions          that were part of the same course  of conduct or common scheme or          plan as the offense of conviction," USSG  1B1.3(a)(2).  Since the          Filin  episode was part  of the same course  of conduct or common          scheme or plan  as the vignettes on  which counts 15 and  16 were          premised, the government's thesis  runs, the petitioner possessed          the gun "during commission of the offense."                    The  petitioner's  counter-argument  is  somewhat  more          convoluted.    As  a  general  matter,  he   maintains  that  the          government  defines  "the  offense"  too  broadly  and  that  the          phrase's  scope is  restricted  to  the  specific  offense(s)  of          conviction  and does  not include  "relevant  conduct."   On this          basis, he argues,  his proven use of a  firearm could not support          the  enhancement because that use did not  occur in the course of          an  offense of  conviction  to  which  the  guidelines  attached.          Indeed,  he  adds,  since  the  gun use  took  place  before  the          effective  date of  the guidelines,  it could  not  possibly have          occurred as part of such an offense.                    After studying  the guideline provision, we  reject the          petitioner's hypothesis.   We  conclude instead  that the  phrase          "the  offense,"  fairly read,  bears  the  broader interpretation          ascribed to  it by  the government and  the district court.   Our                                          9          conclusion is grounded in the  language, structure, and theory of          the  sentencing guidelines, and it is  reinforced by an amendment          that the Sentencing  Commission adopted subsequent to  the events          at issue here.   See USSG App. C,  Amend. 394 (Nov. 1991).   That                           ___          amendment deleted the "during commission of the offense" language          from  section 2D1.1(b)(1)  and  thus confirmed  the  government's          interpretation of the guideline as extending to relevant conduct.                    We  do  not  embrace the  petitioner's  suggestion that          Amendment  394   is  inapposite.    The  general   rule  is  that          revisionary  amendments to the  guidelines   that  is, amendments          which change  the law in  a substantive way    cannot  be applied          retroactively   by   a   sentencing   court   to  a   defendant's          disadvantage.   See United  States v. Rostoff,  53 F.3d  398, 406                          ___ ______________    _______          (1st Cir. 1995).   By contrast, clarifying amendments    that is,          amendments  which  do  not  change  the  law,  but  which  merely          elucidate its intended meaning   can be freely used by sentencing          (or    sentence-reviewing)   courts    as   interpretive    aids,          prospectively or retrospectively.   See Isabel v.  United States,                                              ___ ______     _____________          980 F.2d 60,  62 (1st Cir. 1992); United  States v. Ruiz-Batista,                                            ______________    ____________          956 F.2d 351, 353-54 (1st Cir. 1992).  When determining whether a          guideline amendment is  revisionary as opposed to  clarifying, an          inquiring court must accord substantial respect to the Sentencing          Commission's view  on the subject.   See Isabel, 980  F.2d at 62.                                               ___ ______          In effecting Amendment 394, the Sentencing Commission stated that          "[t]his  amendment clarifies that the provisions of   1B1.3(a)(2)          [incorporating as  relevant conduct all  acts which were  part of                                          10          the same course of conduct as the offense of conviction] apply to          the   adjustments   in      2D1.1(b)(1)."      The   Commission's          characterization of Amendment 394 appears apt:  it is designed to          disambiguate  the  guideline provision  and thereby  mitigate any          confusion caused by the original wording.                    That is game,  set, and match.   Because Amendment  394          worked  no substantive change in preexistent law, a sentencing or          reviewing court may apply it retroactively.  See United States v.                                                       ___ _____________          LaCroix, 28 F.3d 223,  227 n.4 (1st Cir. 1994);  United States v.          _______                                          _____________          Valencia-Lucena, 988 F.2d 228, 234  n.4 (1st Cir. 1993); see also          _______________                                          ___ ____          USSG  1B1.11(b)(2) (Nov. 1993).  We do so here.                    The   Commission's   language   could   not   be   more          straightforward.  Amendment 394 makes it plain that the "relevant          conduct"  provisions (such as  section 1B1.3(a)(2)) apply  to the          adjustments  in  section  2D1.1(b)(1)   (such  as  the   firearms          enhancement).   Accordingly,  Amendment 394  fully validates  the          district  court's use  of a  "relevant conduct"  approach to  the          firearms enhancement.                    The   petitioner's  fallback   position   is  no   more          persuasive.  He contends that, even if the  sentencing guidelines          permit the  enhancement  when  a firearm  was  used  during  pre-          guidelines  conduct "relevant"  to a  post-guidelines  offense of          conviction, his  gun use  does not so  qualify because  the Filin          incident (which  took place  in 1987)  was not  part of  the same          course of conduct,  common scheme, or plan that  underlays counts          15 and 16 (both of which  focus on events that occurred in  April                                          11          of 1988).                    This contention  depends on an  artificial distinction.          The petitioner  notes that his  use of a firearm  occurred within          the  time frame of  the so-called  first conspiracy,  whereas the          conduct underlying  the  two  post-guidelines  drug  distribution          counts occurred within  the time  frame of  the so-called  second          conspiracy.   Based  on this  chronology,  he theorizes  that the          enhancing  conduct   the  gun use    cannot be  "relevant" to the          offenses of conviction.                    The fallacy in this theory is that "a course of conduct          or common  scheme  or  plan,"  as that  phrase  is  used  in  the          sentencing  guidelines, is broader  than, rather than coterminous          with, the  definition of a  "conspiracy" as  that term of  art is          used in the overall criminal law.  See United States v. Wood, 924                                             ___ _____________    ____          F.2d 399, 403  (1st Cir. 1991); see also United States v. Spence,                                          ___ ____ _____________    ______          125 F.3d 1192, 1195 (8th Cir. 1997);  United States v. Boney, 977                                                _____________    _____          F.2d 624, 635  (D.C. Cir. 1992).  Thus,  whether or not enveloped          within the  same conspiracy,  offenses may  qualify as  occurring          within  the same course  of conduct as  long as  they are related          sufficiently  to allow  a rational  factfinder  to conclude  that          "they are part of . .  . [an] ongoing series of offenses."   USSG           1B1.3(a), comment.  (n.9(B)).  In  the same vein, "[f]or  two or          more offenses  to constitute  part of a  common scheme  or plan,"          they only need to "be substantially connected to each other by at          least one  common factor, such as .  . . accomplices, [or] common          purpose. . . ."  USSG  1B1.3(a), comment. (n. 9(A)).                                          12                    This dichotomy makes  a world of difference.   Although          the  petitioner's  drug  trafficking  resulted  in  two  separate          charged conspiracies, the  framing of the charges  cannot obscure          the  fact that, throughout  the cocaine trafficking  described in          the indictment,  the  petitioner and  his  principal  accomplices          remained  at the  center of  an ongoing  enterprise devoted  to a          single purpose.4  The shift in the source of supply permitted the          prosecutor  to divide  the enterprise  into two  segments and  to          charge  some defendants  accordingly,  but  the petitioner  never          deviated  from his main business:  the acquisition, distribution,          and  sale  of  cocaine  in   a  specific  region.    Because  the          petitioner's  activities during 1986,  1987, and 1988 constituted          an ongoing series of offenses, the  district court did not err in          imposing the firearms enhancement.                                          C.                                          C.                                          __                          Ineffective Assistance of Counsel                          Ineffective Assistance of Counsel                          _________________________________                    Insofar as  the petitioner's ineffective  assistance of          counsel claim relates to the sentencing phase, it is  impuissant.          The petitioner received  an appropriate sentence, see  supra Part                                                            ___  _____          II(B), and, absent any prejudice, an ineffective assistance claim          cannot prosper.  See  Scarpa v. Dubois, 38 F.3d 1,  8-9 (1st Cir.                           ___  ______    ______          1994).   We turn, then, to  a consideration of the remaining tine          of   the  petitioner's  claim:    that  he  received  substandard          assistance  because   his  trial   counsel  failed   promptly  to                                        ____________________               4The  David I  record discloses  that at  least  three other                     _______          ringleaders  (Yehuda Yarden,  Joseph  Zalmanovich, and  Mordechai          Mizrahi) were involved with the petitioner in both conspiracies.                                          13          communicate a favorable plea bargain to him.                    The genesis of this claim is as follows.  In his motion          (or,  more  accurately,  in a  memorandum  accompanying  it), the          petitioner averred that he learned at some  indeterminate time of          a  favorable plea  offer  extended  by  the  government  but  not          communicated to  him until after  its withdrawal.  Had  the offer          been made  known to  him, the petitioner  ruminates, he  "likely"          would  have accepted  it.   The averment  contains no  specifics,          e.g.,  who  made  the  proposal,  when  it  was  tendered,   what          conditions were attached to it, why  it was withdrawn, or how the          petitioner came to hear of it.5                    Judge Gertner dismissed the  unsupported allegation out          of hand.   On appeal, the  petitioner argues only that  the judge          erred in  brushing aside  the allegation without  a hearing.   We          review the district court's denial of  an evidentiary hearing for          abuse of discretion.   See United States v. Garcia, 954  F.2d 12,                                 ___ _____________    ______          19 (1st Cir. 1992).                    A prisoner who invokes section 2255 is not entitled  to          an evidentiary hearing as a  matter of right.  See United  States                                                         ___ ______________          v. McGill,  11 F.3d 223, 225 (1st Cir. 1993).   Even if a hearing             ______          is requested, a district court properly may forgo it when (1) the          motion   is  inadequate  on   its  face,  or   (2)  the  movant's                                        ____________________               5In  his  papers,  the petitioner  merely  asserted  that he          "later learned that during pre-trial period the Government made a          plea offer .  . .  in return  for a sentence  of 19  years and  6          months.  Counsel failed to  adequately communicate this offer . .          . until the offer had been withdrawn.   [I]n all likelihood . . .          [he] would have accepted said plea offer."                                          14          allegations, even if true, do  not entitle him to relief,  or (3)          the movant's  allegations "need not  be accepted as  true because          they state conclusions  instead of facts, contradict  the record,          or  are  `inherently  incredible.'"    Id.  at  225-26  (citation                                                 ___          omitted);  see also  Rule  4(b),  Rules  Governing  Section  2255                     ___ ____          Proceedings.                    To   progress  to  an  evidentiary  hearing,  a  habeas          petitioner must do  more than proffer gauzy  generalities or drop          self-serving hints that  a constitutional violation lurks  in the          wings.  A representative case is Machibroda v. United States, 368                                           __________    _____________          U.S. 487  (1962), in which  the petitioner's section  2255 motion          alleged   that  his   guilty  plea   resulted   from  an   unkept          prosecutorial  promise.    After the  trial  court  dismissed the          motion without  an evidentiary hearing  and the court  of appeals          affirmed,  the  Supreme  Court   reversed,  noting  that   "[t]he          petitioner's  motion  and  affidavit contain  charges  which  are          detailed and  specific."  Id.  at 495.   In a pithy  passage that                                    ___          possesses particular pertinence  for present purposes, the  Court          cautioned  that a habeas petitioner is not automatically entitled          to  a  hearing  and  normally  should  not  receive  one  if  his          allegations are "vague, conclusory, or palpably incredible."  Id.                                                                        ___          This  is true,  the  Court wrote,  even "if  the record  does not          conclusively and expressly belie [the] claim."  Id.                                                          ___                    Inferior courts routinely  have applied the  Machibroda                                                                 __________          standard  in determining  the need  for  evidentiary hearings  on          section  2255 motions.   Allegations  that are  so evanescent  or                                          15          bereft  of detail  that they  cannot  reasonably be  investigated          (and,   thus,  corroborated  or  disproved)  do  not  warrant  an          evidentiary hearing.   See Dalli v. United States,  491 F.2d 758,                                 ___ _____    _____________          761 (2d Cir. 1974) (holding  that the district court  supportably          refused to convene  an evidentiary hearing when  the petitioner's          allegations were  "vague, indefinite and  conclusory"); see  also                                                                  ___  ____          Amos v. Minnesota, 849 F.2d 1070, 1072 (8th Cir. 1988) (upholding          ____    _________          the  denial of  an evidentiary  hearing  in a  section 2254  case          inasmuch as petitioner "offered only general allegations").                    In this instance, the district court was not obliged to          credit  the petitioner's threadbare  allusions to a  phantom plea          bargain.   Who,  what, when,  where, and  how details  might have          placed matters  of  ascertainable fact  at  issue and  thus  have          bolstered the  case for  an evidentiary  hearing,  but none  were          forthcoming.    To  the  contrary,  the  petitioner  offered  the          district  court no names,  dates, places, or  other details, even          though  such details  presumably were  within  his ken.   In  the          absence of any  particulars, the lower court  justifiably treated          the petitioner's conclusory averments as mere buzznacking.                    The  petitioner points  to  United States  v. Rodriguez                                                _____________     _________          Rodriguez, 929 F.2d 747 (1st  Cir. 1991) (per curiam), as support          _________          for his contention that, when  a section 2255 motion alleges that          defense counsel failed  to inform the defendant of  a plea offer,          the district court  must hold an evidentiary hearing.   That case          provides David with cold comfort,  for the court there took pains          to admonish petitioners  that, in order to  secure an evidentiary                                          16          hearing on  such a claim,  they must tender more  than conclusory          allegations.  See id. at 752.  Rodriguez, unlike David, "provided                        ___ ___          adequate  factual  specifications beyond  bald  speculation," and          therefore merited an evidentiary hearing.  Id.                                                     ___                    To sum up,  the petitioner has put forth  less than the          bare minimum that is necessary to warrant an evidentiary hearing.          On this  gossamer showing, the  district court did not  abuse its          discretion in refusing to license a fishing expedition.                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                    We need  go no  further.   The petitioner's  sentencing          arguments are  procedurally defective  and substantively  infirm.          By  like token, his  unparticularized claim  that a  phantom plea          bargain lapsed for want of timely communication is much too vague          to demand an evidentiary hearing.  Hence, the court below did not          err in rejecting David's section 2255 motion.          Affirmed.          Affirmed.          ________                                          17
