
USCA1 Opinion

	




          June 27, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1484                                     WILFRED HART,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Wilfred Hart, Junior 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.                                 ____________________                                 ____________________                      Per  Curiam.    On  March   23,  1987,  petitioner-                      ___________            appellant Wilfred Hart,  Jr. was indicted in the  District of            Maine on a fourteen-count third superseding indictment  which            alleged a  number of narcotics offenses  and two conspiracies            to possess with intent  to distribute cocaine.  After  a jury            trial, Hart was convicted on June  1, 1988.  On May 16, 1991,            this  court  affirmed  Hart's conviction  on  direct  appeal.            United States v. Hart, 933 F.2d 80 (1st Cir. 1991).            _____________    ____                 On  April  1,  1991,  while  Hart's  direct  appeal  was            pending, Hart filed  a petition to  vacate sentence under  28            U.S.C.    2255.  He  filed an  amended petition on  April 22,            1991.    Although a  magistrate  judge  recommended that  the            petition be  denied without prejudice because  of the pending            appeal,   the  district   court  took   no  action   on  this            recommendation.   On  May  15, 1991,  and,  after the  direct            appeal had been decided, on November 12, 1991 and December 2,            1991, Hart filed supplemental   2255 petitions.   On February            12,  1992, the  district court  adopted a  magistrate judge's            recommended decision that all  of Hart's   2255  petitions be            dismissed.  Hart appeals.  We affirm.                       Issues already resolved on direct appeal                       ________________________________________                 Of  the eight  issues  Hart raises  in  his brief,  five            already have been resolved by this court in the direct appeal            from Hart's conviction: (1) ineffective assistance of counsel            in  general,  id. at  82-83;  (2)  ineffective assistance  of                          __            counsel on  the specific ground  that Hart's  court-appointed            trial   counsel  failed  to  produce  several  witnesses  who            allegedly  would   have  testified   in  support  of   Hart's            contention  that  the  substance  Hart was  dealing  was  not            cocaine, but incense,  id. at 83; (3 &  4) Hart's two similar                                   __            arguments  that there was  only a  single conspiracy,  so his            conviction    on    two    different     conspiracy    counts            unconstitutionally placed him in  double jeopardy, id. at 85-                                                               __            86; and  (5)  Hart's argument  that  the district  court,  by            granting   a  motion   entitled  "Motion   ...  on   Lack  of            Jurisdiction for Sentencing with Federal Question," in effect            ruled  that it had no  jurisdiction to sentence  Hart, id. at                                                                   __            83-84.  Absent  some extraordinary  circumstance not  present            here,  we will  not reconsider  by way  of  collateral review            arguments we have already resolved on direct  appeal.  United                                                                   ______            States v. Butt, 731 F.2d 75, 76 n.1 (1st Cir. 1984).            ______    ____                       Pending motions and grounds for relief                       ______________________________________                 Turning to Hart's  remaining three issues, Hart  alleges            that  the district  court was  without authority  to enter  a            final judgment  against him, and  that this court  is without            appellate  jurisdiction, because  a number of  Hart's motions                                         -3-            and  grounds for  relief remained  undecided in  the district            court when the district court dismissed his   2255 petitions.                 The  district  court's   order  of  dismissal,  however,            expressly  denied  all of  Hart's  pending motions,  stating,            "Hart's  remaining  motions  are  wholly  without  merit  and            warrant  summary dismissal."    No  motions remained  pending            thereafter.                 Hart points  out that  neither the magistrate  judge nor            the district court expressly  discussed each and every ground            for relief set forth in his   2255 petitions.   He appears to            argue that those  grounds for relief that were  not mentioned            remain  pending as well.  In fact, however, a dismissal order            is final, and  effectively dismisses the  matter to which  it            relates,  even  though  the   order  may  not  mention  every            particular  argument or  ground for  relief the  parties have            raised.    Absent some  indication  from  the  court  to  the            contrary,  a   dismissal  order  is   ordinarily  deemed   to            implicitly  reject all  arguments or  grounds for  relief not            specifically  discussed.   Accordingly, nothing  in  Hart's              2255 petitions remained pending.                           Failure to follow   2255 rules                           ______________________________                 Hart next  claims that the district  court erred because            it failed  to follow  Rule 3  of the  Rules Governing    2255                                         -4-            Proceedings  in  the  United  States District  Courts,  which            states that  the clerk  of the  district court "shall  . .  .            enter [a   2255 petition] on  the docket in his office in the            criminal action in which was entered the judgment to which it            is directed."  According to  Hart, the clerk instead assigned            Hart's original    2255 petition  a separate number,  and did            not enter it on the docket of Hart's prior criminal action.                 We  reject  this  claim  because Hart  says  nothing  to            suggest that this clerical  error, if it occurred, prejudiced            him  in any  way.   Thus, Hart's  contentions, even  if true,            provide no basis for   2255 relief.                       Alleged perjury of government witnesses                        _______________________________________                 Finally,  Hart  alleges  that the  government  knowingly            permitted several of its witnesses to give perjured testimony            at his  trial.  Hart did  not raise this issue  in his direct            appeal, and he has  said nothing to  suggest that he did  not            know of the alleged perjury at the time of his direct appeal.            Hart  is therefore precluded from  raising the matter  in a              2255 context unless he can establish cause for the procedural            default and resulting actual prejudice.  Smith v. Murray, 477                                                     _____    ______            U.S. 527, 536 (1986); Velarde v. United States, 972 F.2d 826,                                  _______    _____________            827  (7th Cir. 1992); Murchu  v. United States,  926 F.2d 50,                                  ______     _____________            53-54 n.4 (1st Cir.), cert. denied, 112 S.Ct. 99 (1991).                                  ____  ______                                         -5-                 Hart  has not put forward  any cause for  the failure to            raise this issue on direct appeal.  Although Hart has claimed            that  his appellate  counsel was  ineffective, Hart  raised a            number of issues pro se in his direct appeal, in  addition to            the issues raised by counsel.  Hart, supra, 933 F.2d at 82.                                           ____  _____                 In  addition, Hart  has not  demonstrated any  resulting            prejudice.   Even assuming, arguendo, that  the testimony was                                        ________            false, Hart has made  no showing, and the record  contains no            evidence to  suggest, that the  government may have  known or            should  have known of any perjury, or that the government may            have induced it in any way.   Consequently, Hart could not be            entitled  to a  new  trial based  on  the allegedly  perjured            testimony.    Velarde,  supra,  972  F.2d  at  829.    Hart's                          _______   _____            allegations  of  perjured  testimony  are  accordingly barred            because of Hart's procedural default.                                     Conclusion                                      __________                 We  have considered  all of  Hart's other  arguments and            find them meritless.                 The  district  court's  denial of  Hart's  petitions  to            vacate sentence under 28 U.S.C.   2255 is affirmed.                                                      ________                                         -6-
