
USCA1 Opinion

	




        January 25, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                 ____________________        No. 95-1186                                     UNITED STATES,                                      Appellee,                                          v.                                   MICHAEL BARNETT,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Michael Barnett on brief pro se.            _______________            Donald K. Stern, United States  Attorney, and Michael D. Ricciuti,            _______________                               ___________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Pro se defendant Michael  Barnett appeals a                 __________   ___ __            district  court order  that summarily  denied his  motion for            relief from his sentence under 28 U.S.C.   2255.  Barnett was            convicted of three offenses  arising out of his participation            in a  conspiracy to manufacture methamphetamine.   See United                                                               ___ ______            States v. Barnett, 989 F.2d 546 (1st Cir.), cert. denied, 114            ______    _______                           _____ ______            S. Ct. 148  (1993).  He  was sentenced to  a total of  thirty            years'  imprisonment.    Barnett's  motion  and  supplemental            filings  alleged  that  his sentence  was  the  result  of an            improper application  of the Sentencing Guidelines.   He also            claimed  that  his  sentence  violated  the  Double  Jeopardy            Clause.                 We have thoroughly reviewed  the record and the parties'            briefs  on appeal.   We  conclude that  Barnett's claims  are            wholly  lacking in  merit  and that  his motion  was properly            denied.   Briefly, neither of Barnett's  claims is cognizable            under 28 U.S.C.   2255 unless Barnett shows "cause" to excuse            his procedural  default  and  prejudice  resulting  from  the            alleged errors, or  that the failure  to consider his  claims            will  result in  a  fundamental miscarriage  of justice.  See                                                                      ___            Levasseur v.  Pepe, 70 F.3d  187, 192 (1st  Cir. 1995)(citing            _________     ____            Coleman  v. Thompson, 501 U.S. 722, 750 (1991)).  Barnett has            _______     ________            failed to make either  showing.  Barnett's claim that  he did            not possess  the 50 kilogram container  of pseudoephedrine as            part of the  conspiracy appears to be frivolous where Barnett                                         -2-                                          2            admitted that he was the "chemist" for the conspiracy and his            codefendant was recorded  saying that he and his  chemist had            ingredients to  make 40 pounds  of methamphetamine.   Even if            the contention has  some merit, it  cannot be said  to be  so            obvious or strong  that counsel's failure to  raise the point            amounted to ineffective assistance.  See Jones v. Barnes, 463                                                 ___ _____    ______            U.S. 745, 750-54  (1983)(counsel has no  duty to raise  every            nonfrivolous issue requested by defendant).  Barnett's Double            Jeopardy claim is also meritless.   As each of his counts  of            conviction required proof of  an element that the  others did            not, his sentence does not violate the Double Jeopardy Clause            under the familiar Blockburger test.                                 ___________                 On appeal,  Barnett argues that U.S.S.G.   2D1.11 (1994)            requires  that he  be resentenced  to a  substantially lesser            term.  We have considered this argument,  although it was not            made below, because  2D1.11  was not retroactive when Barnett            submitted his   2255 motion.  We conclude that this guideline            does not entitle Barnett to any relief from his sentence.  To            the contrary, Barnett  would have  been subject  to the  same            offense level under  2D1.11, comment. n. 3.  Accordingly, the            judgment of the district court is affirmed.                                              ________                                         -2-                                          2
