
USCA1 Opinion

	




          May 19, 1993                                [NOT FOR PUBLICATION]                                 ____________________        No. 92-2329                                  RICHARD A. NAZZARO,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ____________________            Richard A. Nazzaro on brief pro se.            __________________            A. John Pappalardo,  United States Attorney, and Alexandra  Leake,            __________________                               ________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Petitioner Richard  A.  Nazzaro,  a                      ___________            former   police  officer   with  the   Metropolitan  District            Commission (MDC),  appeals  from  the  denial  of  his  third            petition  under 28 U.S.C.   2255  to vacate his sentence.  We            affirm.                                          I.                                          _                      Petitioner was  convicted in 1988 of  two counts of            conspiracy to commit  mail fraud,  18 U.S.C.    371, and  two            counts  of perjury, 18 U.S.C.   1623.  The conspiracy charges            concerned the  alleged  illegal purchase  by  petitioner  and            others  of copies of two  civil service promotion  exams -- a            1979  exam   for  the  position   of  sergeant  and   a  1983            lieutenant's exam.    Counts  three  and  four  charged  that            petitioner  had  given false  grand  jury  testimony in  1986            relating  to these  two  exams.   On  his direct  appeal,  we            considered  two issues  -- were  the conspiracy  counts time-            barred  and were petitioner's  allegedly false  statements to            the  grand jury  material to  its inquiry.   We  affirmed the            judgment  except as to the  first count relating  to the 1979            exam;  we determined that prosecution of this count was time-            barred.   United States v. Nazzaro, 889 F.2d 1158, 1161, 1165                      _____________    _______            (1st Cir. 1989).                      We  also  rejected three  other issues  with little            discussion:  (1) whether the jury instructions concerning the            perjury counts were erroneous; (2) whether the district court            had  abused its  discretion in  not acceding  to petitioner's            request that  the  court  conduct  individual  voir  dire  to            determine whether the  unsequestered jurors had been  exposed            to a  newspaper article  about a different  police department            and  different crimes;  and  (3) whether  the district  court            erred in  not admitting  in evidence petitioner's  resume and            other  "anecdotal" proof  of commendations  he  had received.            Id. at 1166-68.            ___                      On  January  18, 1990,  petitioner,  represented by            counsel,  filed his  first     2255  petition.    In  it,  he            contended that  the testimony of "numerous  witnesses" at his            trial had related only  to Count One -- the  1979 instance of            mail fraud.   Because we held, on appeal, that  Count One was            time-barred, petitioner claimed that  the jury could not have            made an  impartial decision concerning the  remaining counts.            At the same  time, counsel  filed a motion  for reduction  of            sentence under Fed. R. Crim. P. 35.  In addition to the claim            raised in  the    2255 petition,  petitioner argued that  his            sentence was excessive.  He based his argument on the present            overcrowding in federal prisons  and his past service to  the            community.  These motions were denied on January 22, 1990.                       About two  months later in March  1990, petitioner,            now pro  se, filed a second  Rule 35 motion.   He argued that            his  family required  his presence and  support, that  he had            served  his  country  in  the  army,  that  he  had  received            commendations from  work and that  his conduct at  prison was            exemplary.  He also suggested that his sentence was excessive                                         -3-            and  not in line with  the Sentencing Guidelines.   The court            denied this motion on June 13, 1990.                      Petitioner's second   2255  motion was filed on the            same day and raised three grounds for relief:  (1) petitioner            had had  insufficient time  to review the  Presentence Report            (PSI) in violation  of Fed. R. Crim. P. 32  and had signed it            "under protest"; (2) his four-year sentence was excessive and            violated  "accepted"  guidelines  for  sentencing;   and  (3)            petitioner's due process rights  had been violated because he            was indicted only for perjury concerning testimony before the            grand jury in 1986 when he  had been asked the same questions            and had given the same answers before a second  grand jury in            1988.                      After briefing  by both  sides, the  district court            denied the   2255 motion on January 23, 1992.  It held that a            review of the sentencing hearing revealed that petitioner had            had an adequate opportunity to object to  the PSI.  Next, the            court  addressed petitioner's  statement,  written above  his            signature  on the  PSI, that  he disagreed  with some  of the            government's  comments  which,  he claimed,  had  never  been            before the district court.  The court ruled that this was not            a sufficiently particular charge that required the sentencing            judge  to make specific  findings concerning disputed factual            allegations.  As for his sentence, the court pointed out that                                         -4-            it was  within the limits  set by  law.   Finally, the  court            concluded that petitioner's due process claim was meritless.                      This brings us to the  present   2255 motion, filed            on February  6, 1992  --  approximately two  weeks after  the            dismissal of the second petition.  In this motion, petitioner            claims  that  the district  court  violated  his due  process            rights when it did  not alter his sentence after  we reversed            his  conviction  on  Count  One.   He  claims  that testimony            concerning this  count "permeated" the entire  trial and that            sentencing was "heavily weighted" towards the conduct charged            in  Count  One.    He  acknowledges,  however,  that  as  the            sentences  were  to  run  concurrently,  the  court  did  not            necessarily  have to change the length of his sentence.  Yet,            he maintains, the stigma still remains.                      Petitioner also asserts that his due process rights            were violated when the prosecutor asked the defense witnesses            about  their  knowledge  concerning   petitioner's  temporary            suspension  from his job as a result of an alleged fraudulent            insurance claim.   Petitioner avers that  the insurance claim            issue was irrelevant, erroneous and misleading.  The repeated            use of  this improper  character evidence by  the prosecutor,            petitioner states,  directly resulted  in the finding  of his            guilt.   Thus,  he  concludes that  the prosecutor's  actions            cannot be characterized as harmless error.                                         -5-                      Petitioner's  second and  third grounds  for relief            are that  he was  denied effective assistance  of counsel  at            trial and on  appeal.  First, he asserts that  it was "common            knowledge" at trial that counsel had Lyme's disease for which            he  was being  treated.   The treatment  included the  use of            antihistamines  which, according  to  petitioner, can  induce            side effects  such as cognitive dysfunction,  memory loss and            drowsiness.    This, he  maintains,  affected  his attorney's            performance.    Second,  petitioner  alleges  that his  trial            counsel  "carelessly"  allowed  the  prosecutor  to  ask each            defense  witness  about  the  "misleading"  insurance  issue.            Finally, petitioner asserts that  trial counsel failed in his            general duty to make sure that evidence of petitioner's  good            character  was  presented to  the  jury.   As  for  appellate            counsel,   petitioner   charges   that  he,   too,   provided            constitutionally defective assistance when he failed  to file            a timely motion for a new trial.                      The government filed a  response in which it argued            that appellant had abused the writ.  The district court, in a            short  order, dismissed  petitioner's    2255  motion.   This            appeal ensued.                                         II.                                         __                      Rule 9  of the  Rules Governing Proceedings  in the            United States District Courts under Section 2255 provides:                        (b)  Successive  motions.  A  second or                        (b)  Successive  motions.                             ___________________                      successive motion may be dismissed if the                                         -6-                      judge finds that  it fails to allege  new                      or different  grounds for relief  and the                      prior determination was on the merits or,                      if new and different grounds are alleged,                      the judge  finds that the  failure of the                      movant to assert those grounds in a prior                      motion  constituted  an   abuse  of   the                      procedure governed by these rules.                      In McCleskey v. Zant,  111 S. Ct. 1454  (1991), the                         _________    ____            Supreme  Court held  that in  cases of  "abuse of  the writ,"            courts  should  use  the  cause-and-prejudice  standard  that            applies  to cases  of procedural  default, see  Wainwright v.                                                       ___  __________            Sykes,  433  U.S.  72  (1977).   Thus,  once  the  government            _____            satisfies its burden by first pleading the existence of abuse            of the writ, as it did here,  the burden shifts to petitioner            to  establish cause for  failing to  raise in  earlier habeas            petitions the  grounds presented in  the subsequent  petition            and  prejudice therefrom.   See id. at 1470.   To show cause,                                        ___ ___            petitioner  must demonstrate that  some "external impediment,            whether  it  be  government interference  or  the  reasonable            unavailability of the factual basis for the claim, must  have            prevented [him] from raising the claim."  Id. at 1472.                                                      ___                      It is  plain  that petitioner's  first  ground  for            relief --  that the  district court  should have changed  his            sentence after this court reversed petitioner's conviction on            Count One -- was  available to appellant after we  issued our            opinion  in 1989.  Petitioner  offers no reason  why he could            not have  pursued this  claim in  one of  his earlier    2255                                         -7-            motions.  Thus, he has not  established the requisite "cause"            under McCleskey.                  _________                      The  same can  be  said for  the  claim that  trial            counsel provided inadequate  assistance due to  his treatment            for Lyme's disease and  that appellate counsel's  performance            was deficient when  he failed to make  a timely motion for  a            new trial.   As for the first allegation, petitioner candidly            admits in  his    2255  motion that  trial counsel's  medical            treatment was known at the time of trial.  In relation to the            actions of  his appellate  counsel, petitioner fails  to give            any  indication that he was unaware of the alleged failure to            file  a new  trial  motion.   Thus,  we do  not perceive  any            reasons  why these issues could  not have been  raised in the            previous   2255 motions.                      This leaves petitioner's claim that trial counsel's            performance  was inadequate because he  did not object to the            questions concerning the allegedly false insurance claim.  On            appeal, petitioner argues that he, in fact, based the present              2255 motion on  "new evidence."  This evidence is the order            of  the  Boston  Municipal  Court, dated  November  6,  1991,            reversing the decision of the MDC to suspend petitioner.  The            court  found  that the  MDC's  action was  taken  without the            proper procedure  and in  excess of its  statutory authority.            The  Suffolk  Superior Court  affirmed  on  August 25,  1992.                                         -8-            Petitioner  essentially  claims  that  this  information  was            previously unavailable to him.                      Although superficially appealing,  the above  fails            to  establish "cause"  within the meaning  of McCleskey.   In                                                          _________            McCleskey, the  district court determined that the petitioner            _________            had  not abused  the writ  when he  filed his  second federal            habeas petition.   The court relied on the  fact that, at the            time the petitioner had filed his first  federal petition, he            had been unaware of the existence of a signed statement by an            individual who was  in the  jail cell  next to  petitioner's.            McCleskey, 111  S.  Ct.  at  1460.    This  statement,  which            _________            recounted pretrial jailhouse conversations, had been given to            the  police   before  petitioner's  trial  but   released  to            petitioner only one month  prior to the filing of  his second            habeas  petition.   This  individual  had  testified for  the            prosecution at petitioner's trial; he stated  that petitioner            had told him that he (petitioner) had committed the crime.                      Also,  the district court found that the petitioner            was unaware, at the time of the first habeas petition, of the            identity of one of the jail officials.  Id.  This individual,                                                    ___            at the hearing on the  second habeas petition, testified that            the witness may  have intentionally been  placed in the  jail            cell next to petitioner's.                      The Supreme Court held:                           That [petitioner] did not possess or                      could   not   reasonably  have   obtained                                         -9-                      certain evidence fails to establish cause                      if other known  or discoverable  evidence                      could have  supported  the claim  in  any                      event.  "[C]ause . . . requires a showing                      of  some  external impediment  preventing                                                     __________                      counsel  from  constructing or  raising a                      claim."            Id. at 1472 (citation omitted).            ___                      Here petitioner  possessed "a sufficient  basis" to            allege the claim concerning the insurance matter in either of            the  prior   2255 motions.  This is highlighted by petitioner            himself when he  points out,  in the present    2255  motion,            that, at trial,  he had  specifically "made it  known to  his                  ________            attorney that the  issue of the insurance claim  was depicted            incorrectly and  damaging [sic]."   Since the time  of trial,            then, petitioner knew that the insurance fraud claim was,  at            least in his eyes, untrue.   As such, there was no impediment                                                            __            to  the presentation of the claim;  the state court decisions            are more properly characterized as "evidence discovered later            [which] might also have supported or strengthened the claim."            See id. at 1472.            ___ ___                      The  only inquiry  left is  whether  petitioner has            shown  that  a  "fundamental miscarriage  of  justice"  would            result if his present claims are not entertained.  See id. at                                                               ___ ___            1470.   The  McCleskey  Court emphasized  that this  standard                         _________            applies  only  to  a "narrow  class  of  cases"  in which  "a            constitutional violation  probably has caused  the conviction            of  one innocent of the crime."   Id.  Petitioner must make a                                              ___                                         -10-            "`colorable showing of factual innocence'" to meet this test.            See  id. at 1471 (quoting  Kuhlmann v. Wilson,  477 U.S. 436,            ___  ___                   ________    ______            454 (1986)).                      Although  petitioner does not directly address this            question, he generally argues that  the use by the prosecutor            of  the alleged  insurance fraud  issue was  "prejudicial and            devastating."   Further,  petitioner suggests  that when  the            government  pursued Count One at trial, it was aware that the            charge  was time-barred.   By nonetheless presenting evidence            concerning the 1979 examination, the government "deliberately            deceived the court and jury. . .  ."  It did so, according to            petitioner, because "this illegal charge was the only hope of            prejudicing the  jury to find [petitioner]  guilty."  Without            Count One, petitioner asserts, the government had no case and            would have been forced to drop the other charges.                      This is insufficient to satisfy the  miscarriage of            justice  standard.   Petitioner's  claims that  without Count            One, there would have been no case and that, in any event, he            would have been found  not guilty, are allegations  which are            conclusory in  nature.   Petitioner's  characterizations  and            opinion  of  the government's  case do  not  come close  to a            "colorable showing of factual innocence."  Indeed, petitioner            has not  made, on direct appeal  or in any of  his motions, a            sufficiency  of the evidence claim.   See Andiarena v. United                                                  ___ _________    ______            States, 967 F.2d  715, 719 (1st Cir. 1992) (per  curiam).  In            ______                                         -11-            the absence of more  factual specificity, we cannot  say that            the ends of justice were not served.                      For the  foregoing reasons, we  affirm the district                                                      ______            court's decision to dismiss petitioner's third petition under              2255.                                         -12-
