
USCA1 Opinion

	




          September 25, 1995    [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1427                                 THOMAS A. FAULHABER,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                              __________________________                                        Before                           Selya and Stahl, Circuit Judges,                                            ______________                             and Gorton,* District Judge.                                          ______________                              __________________________                Cheryl J. Strum on brief for appellant.                _______________                David J.  Apfel,  Assistant  United  States  Attorney,  and                _______________          Donald K. Stern, United States Attorney, on brief for appellee.          _______________                              __________________________                              __________________________          ____________________          *Of the District of Massachusetts, sitting by designation.                     Per Curiam.   We summarily affirm the  dismissal of the                    Per Curiam.                    __________          petition brought by Thomas  A. Faulhaber pursuant to 28  U.S.C.            2255  (1994)    for essentially  the  reasons  set  forth in  the          thoughtful  report of  the  magistrate judge,  dated November  4,          1994, thereafter adopted by the district court on de novo review.          We pause only to emphasize a few points.                    First,  the  rule  is  clear  that  claims  raised  and          rejected  on direct appeal  may not be  resurrected on collateral          review under  the aegis of a section  2255 petition.  See Barrett                                                                ___ _______          v.  United  States, 965  F.2d 1184,  1190  n.11 (1st  Cir. 1992);              ______________          Murchu v. United States,  926 F.2d 50, 55 (1st Cir.  1991), cert.          ______    _____________                                     _____          denied, 502 U.S. 828  (1991); Dirring v. United States,  370 F.2d          ______                        _______    _____________          862, 864 (1st  Cir. 1967),  cert. denied, 377  U.S. 1003  (1964).                                      _____ ______          The  petitioner ignores  this rule,  rehashing  several arguments          that this  court previously rejected  as unavailing.   See United                                                                 ___ ______          States v. Faulhaber, 929 F.2d 16 (1st Cir. 1991).          ______    _________                    Second, the petitioner's claim  that he did not receive          constitutionally  effective  assistance  from the  attorneys  who          handled his trial and his direct  appeal is bootless.  The record          bears witness that petitioner's trial counsel provided him with a          stellar  defense, and  that his  direct appeal  was handled  in a          thoroughly professional manner.  In no way can the alleged errors          in  failing to object  when the financial  instruments upon which          the criminal  charges were based were termed "checks" rather than          "drafts" be said to have affected the outcome of his  trial or to          have lengthened his sentence.                                          2                    To say more would be to paint the lily.  On the face of          the  petition,  dismissed as  meritless  by  the very  judge  who          presided over Faulhaber's  original trial, Faulhaber can  satisfy          neither  the  performance nor  prejudice  prong of  the  test for          ineffective  assistance.  See, e.g., Scarpa v. Dubois, 38 F.3d 1,                                    ___  ____  ______    ______          8-9  (1st  Cir. 1994)  (setting  forth applicable  constitutional          standard), cert. denied, 115 S.Ct. 940 (1995).                     _____ ______                    Petitioner also alleges, as before, that the government          failed  to  produce  exculpatory  evidence in  violation  of  its          obligations  under Brady v. Maryland, 373 U.S. 83 (1963).  During                             _____    ________          pretrial discovery the prosecution gave petitioner the benefit of          open access to all its files.   We agree with the government (and          with  the magistrate)  that the  "undiscovered" deposit  slips to          which petitioner  now  alludes either  are  imagined or,  to  the          extent  they  exist,  would  most probably  have  reinforced  the          prosecution's case if submitted  into evidence.  At any  rate, we          rejected  a version of this claim on direct appeal as impuissant,          and Faulhaber is foreclosed from  raising it again by means  of a          section  2255 petition.  And,  moreover, the passage  of time has          not increased the potency of the asseveration.                    It follows  inexorably that the district  court did not          abuse its discretion in denying petitioner an evidentiary hearing          on the Brady claims.   See United States v. McGill, 11  F.3d 223,                 _____           ___ _____________    ______          225-26 (1st Cir. 1993);  United States v. Burrows, 872  F.2d 915,                                   _____________    _______          917 (9th Cir. 1989); Baumann v. United States, 692 F.2d 565, 572-                               _______    _____________          73 (9th Cir. 1982);  cf. United States v. Panitz,  907 F.2d 1267,                               ___ _____________    ______                                          3          1273-74 (1st Cir. 1990).                    We need go no further.   Although hope springs eternal,          points fully considered and properly  rebuffed cannot rewardingly          be relitigated in  perpetuity.   Since this appeal  flies in  the          teeth of that truism,  and presents no fairly debatable  issue of          fact or law, the judgment of the district court must be summarily          affirmed.  See 1st Cir. R. 27.1.                     ___                    Affirmed.                    Affirmed.                    ________                                          4
