
USCA1 Opinion

	




        December 12, 1995       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1256                               UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                               JOHN J. ZULETA-ALVAREZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            John J. Zuleta-Alvarez on brief pro se.            ______________________            Jay P. McCloskey,  United States  Attorney, and  F. Mark  Terison,            ________________                                 ________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Petitioner-appellant John J.  Zuleta-                      __________            Alvarez appeals pro se from the district court's dismissal of                            ___ __            his second petition pursuant to 28  U.S.C.   2255 as an abuse            of  the  writ.   Nothing  in  our  November  3, 1992  opinion            affirming the  denial of  petitioner's first    2255 petition            was  intended to indicate that an "abuse of the writ" defense            would be  unavailable if petitioner filed  a second petition.            We  merely  intended  to  alert the  pro  se  petitioner that                                                 ___  __            although the issue he raised for the first time on appeal did            not merit  relief under  our narrowly circumscribed  scope of            review, it could be raised in  a new   2255 petition, subject            to any available defenses (including abuse of the writ).                      Petitioner's  reliance  upon   Sanders  v.   United                                                     _______       ______            States,  373 U.S. 1 (1963), is misplaced.  McCleskey v. Zant,            ______                                     _________    ____            499  U.S. 467  (1991),  established the  cause and  prejudice            standard  that  now governs  in  abuse  of  the  writ  cases.            Petitioner has failed to  demonstrate "cause" for his failure            to raise the two  issues presently before  us in his first               2255 petition.   We disagree  that this  court's decision  in            United  States v.  O'Campo, 973  F.2d  1015 (1st  Cir. 1992),            ______________     _______            constituted   new  law   such  that   the  legal   basis  for            petitioner's present claims  was not reasonably available  at            the  time that  his first  petition was  filed.   The O'Campo                                                                 ________            holding relied  upon a straightforward  interpretation of the            language  of  the   then-current  United  States   Sentencing                                         -2-            Guidelines  and  the commentary  thereto.  The  same relevant            language  was  contained  in  the  Guidelines  in  effect  in            December  1991, when  petitioner  filed his  first  petition.            Therefore, the language of the Guidelines themselves provided            a legal basis for petitioner's present claims.                      Petitioner  has failed  to  satisfy  his burden  of            showing  cause  for  failing  to  raise  earlier  the  claims            contained in his second    2255 petition.   Nor has he  shown            that a "fundamental miscarriage  of justice would result from            a failure to entertain the claim[s]."  McCleskey v. Zant, 499                                                   _________    ____            U.S. at 495.  Therefore, we affirm the district court's order                                        ______            dismissing  petitioner's second  petition under  28  U.S.C.              2255 as an abuse of the writ.                                         -3-
