
USCA1 Opinion

	




          November 17, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1397                                ANA MARIA LOPEZ DEL RIO,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Ana Maria Lopez Del Rio on brief pro se.            _______________________            Jay  P.  McCloskey,  United  States  Attorney,  F.  Mark  Terison,            __________________                              _________________        Assistant United States Attorney, and Margaret D. McGaughey, Assistant                                              _____________________        United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.  Ana  Maria Lopez Del  Rio appeals the                      ___________            dismissal of her  second pro se motion to  vacate, set aside,                                     ___ __            or correct her sentence under  28 U.S.C.   2255.  The  motion            was denied as an abuse of the writ.  We affirm.                                          I.                                          _                      Del Rio pleaded guilty  to possessing, distributing            and conspiring to possess and distribute cocaine in violation            of 21 U.S.C.    841 and  846 and was sentenced to 132  months            imprisonment.  Her  appeal of that  sentence raised only  one            ground for review:  that the district court incorrectly found            her  to  be   a  "leader"  under  U.S.S.G.      3B1.1(a)  and            erroneously enhanced  her  offense  level  accordingly.    We            affirmed the sentence,  United States v. Ana  Maria Lopez Del                                    _____________    ____________________            Rio, No. 91-1442 (1st Cir.  Nov. 14, 1991), and Del Rio  then            ___            filed  her first   2255  motion.  It  alleged two grounds for            relief.  First, she argued that the district court misapplied            U.S.S.G.    1B1.3(a)(2) in  deciding that  the  scope of  the            conspiracy included the drug transactions and quantities  set            out in the presentence report as well as the testimony at the            trial  of Del Rio's  co-conspirator and brother,  Andre Lopez            Polanco.     Second,  Del   Rio  contended  that   there  was            insufficient evidence to support a  conclusion that she was a            leader  under  U.S.S.G.     3B1.1(a).    The  district  court            summarily denied the motion and no appeal was taken.                      In this, her second motion to vacate sentence under               2255, Del Rio asserts one ground  for relief:  Whether the            district court erred by adopting the presentence report based            on the relevant conduct section of the sentencing guidelines.            In a supporting memorandum, Del Rio argued that  the November            1, 1992 amendments  to   1B1.3 clarified the relevant conduct            guideline,   and  that,   accordingly,  the   district  court            improperly  based  her  sentence  on  drug  transactions  and            quantities that she could not reasonably have foreseen within            the conspiracy.                      The  government's  response claiming,  inter  alia,                                                             _____  ____            abuse of  the writ under  the teaching of McCleskey  v. Zant,                                                      _________     ____            111 S. Ct.  1454, 1468 (1991), outlined Del  Rio's prior writ            history and argued that the single issue raised in the second            motion, to the extent that it differed from ground one in the            first    2255  motion,  could  not be  raised  now without  a            showing  of "cause"  for having  failed to raise  the present            claim  earlier.   Id.   The  government contended  that cause                              ___            could not  be shown  because the  current "relevant  conduct"            claim was  simply a  restatement of the  claim raised  in the            first motion disputing the amount of cocaine involved in  the            conspiracy.  The  district court summarily denied  the motion            as an abuse of the  writ.  Del Rio's subsequently-filed reply            to the government's response did not address the abuse of the            writ charge.  This appeal ensued.                                         -3-                                         II.                                         __                      Del  Rio's second  motion  to vacate  sentence  was            properly dismissed under Rule 9 of the Rules Governing   2255            proceedings.  Rule  9(b), consistent with  the language of               2255   ("The  sentencing  court  shall  not  be  required  to            entertain a second or successive motion for similar relief on            behalf  of the same  prisoner."), provides that  successive              2255 motions may  be dismissed "for abuse of  the procedure."            While Rule 9(b)  does not define "abuse", under  the abuse of            the writ  doctrine, see  McCleskey,  111 S.  Ct. at  1467-71,                                ___  _________            petitioners invoking either 28 U.S.C.    2254 or 2255 will be            excused from  failing  to  raise  an issue  earlier  only  by            showing   "cause  for  failing  to  raise  it  and  prejudice            therefrom" or that a fundamental miscarriage of justice would            otherwise result.  McCleskey,  111 S. Ct. at 1470;  Andiarena                               _________                        _________            v. United States,  967 F.2d 715, 717 (1st  Cir. 1992); United               _____________                                       ______            States v. Flores, 981 F.2d 231, 234 (5th Cir. 1993).            ______    ______                      Here, the  government adequately  pleaded abuse  of            the writ in response to  Del Rio's second motion.  Andiarena,                                                               _________            967 F.2d at 716.  Since Del Rio's first   2255 motion was not            decided on  the merits, she  must disprove  abuse by  showing            that   "some   external   impediment,   such  as   government            interference or the reasonable unavailability of the  factual                                         -4-            or legal  basis for a  claim, prevented it from  being raised            earlier."   Id. at 718.   Del Rio has  failed to make  such a                        ___            showing.  The only new assertion in support of her claim that            the  court held  her  accountable for  conduct  that was  not            "reasonably  foreseeable" by her --- that Guideline Amendment            439  "clarified" the relevant conduct guideline,   1B1.3, and            reduced  her sentencing range  exposure --- is  unavailing to            show  "cause."   The  amendment, which  came  into effect  on            November  1, 1992, eighteen  months after sentencing,  is not            retroactive  in operation.  U.S.S.G.   1B1.10.  Thus, whether            or  not the  amendment has  the  effect Del  Rio contends,  a            question we need not decide,  it is not a "retroactive change            in  the law . . . represent[ing  an] acceptable excuse[ ] for            failing to raise  the claim earlier."  McCleskey,  111 S. Ct.                                                   _________            at 1467.  Thus, Del Rio not only has failed to show cause for            her  previous  failure  to  raise the  issue,  she  has shown            neither  prejudice nor  a miscarriage  of  justice since  the            amendment  on which  her  claim  depends  was,  and  remains,            inapplicable.                          Because  of the "threshold  nature of the  abuse of            the writ  inquiry," id.  at 1471, we  also need  not consider                                __            whether  the  claim  at  issue  here  had  been  procedurally            defaulted  at  some   earlier  stage  of  the   proceedings.1                                            ____________________            1.  Although Del  Rio was  then represented  by counsel,  she            failed  to  raise  a  relevant  conduct sentencing  guideline            challenge on  direct appeal.   Generally, waiver of a    2255                                         -5-            Obviously, if a successive motion  under   2255 was found not            an abuse of procedure,  Rule 9(b), 28 U.S.C. foll.   2255, it            would  then be  necessary to  consider  whether the  petition            suffers from other procedural defects.  McCleskey, 111 S. Ct.                                                    _________            at 1466.                                         III.                                         ___                      In conclusion, even if we were to  reach the merits            of Del Rio's claim, we would  find no error in the sentencing            court's  application  of the  relevant conduct  guidelines in            effect at  the  time  of  sentencing.    The  district  court            properly  determined, as  a matter  of law,  that the  motion            constituted an abuse of the writ.                      Affirmed.                      ________                                            ____________________            claim  on direct appeal is excused by  a showing of cause and            actual prejudice.   See Campino  v. United  States, 968  F.2d                                ___ _______     ______________            187, 190 (2d Cir. 1992); United States v. Biberfeld, 957 F.2d                                     _____________    _________            98, 104 (3d Cir. 1992).  While we need not decide  the issue,            we  note that  Del Rio  has not  alleged that  her attorney's            failure  to raise the issue on appeal constituted ineffective            assistance of counsel.                                         -6-
