
USCA1 Opinion

	




          July 20, 1992         [NOT FOR PUBLICATION]                                 ____________________            No. 92-1159                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                 GUISEPPE PELLERITO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                        Selya, Cyr, and Boudin, Circuit Judges.                                                ______________                                 ____________________                 Robert W. Odasz on brief for appellant.                 _______________                 Daniel  F. Lopez-Romo, United States Attorney, Robert S.                 _____________________                          _________            Mueller, III, Assistant  Attorney General,  Mary Lee  Warren,            ____________                                ________________            Bruce A. Pagel, Hope  P. McGowan, and Marietta I.  Geckos, U.            ______________  ________________      ___________________            S. Department of Justice, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.   Giuseppe Pellerito filed a petition in the                 __________            district court, pursuant to  28 U.S.C.   2255, to  vacate his            earlier guilty  plea in a drug conspiracy  case.  The gist of            his claim was that  his plea had been induced  by ineffective            assistance of counsel.  The district court, having heard  and            rejected  similar  arguments by  Pellerito  three  years ago,            denied  the  petition  without  an  evidentiary hearing,  and            Pellerito appeals.  We affirm.                 The background  facts can  be stated briefly.   Together            with more  than 30  co-defendants, Pellerito was  indicted in            1988 for conspiring to  distribute heroin as part of  a major            drug  distribution ring.   Many defendants pled but Pellerito            and one co-defendant  went to trial on June 6,  1988.  On the            following   day,   Pellerito  reached   agreement   with  the            government  and entered  a guilty  plea to  the single  count            charged against  him, and  his co-defendant entered  a guilty            plea on June 8.  Pellerito's decision was prompted in part by            government evidence that threatened Pellerito with a possible            life sentence; the plea  agreement capped his exposure at  20            years with a promised recommendation by  the prosecutor of 18            years.                  Eight  weeks  later,  long   after  the  jury  had  been            discharged and  the government  had  released its  witnesses,            Pellerito  (now represented  by new  counsel) filed  a motion            prior to his sentencing seeking to withdraw his  guilty plea.            Fed. R.  Crim. P.  32(d).  Pellerito  urged as the  basis for                                         -2-            withdrawing  his  guilty plea  that  Ivan  Fisher, his  trial            counsel  until  shortly  before  the guilty  plea,  had  been            inadequately prepared, and that  Emanuel Moore, who took over            the defense shortly before trial, had lacked time to prepare.            After hearing testimony from both attorneys among others, the            district judge denied the motion and later filed an extensive            opinion.   United  States  v. Pellerito,  701  F.  Supp.  279                       ______________     _________            (D.P.R.  1988).    Pellerito  was sentenced  to  18  years in            prison.                 Pertinently, in  its decision the  district court  found            that Fisher and  another lawyer  who worked with  him on  the            case  had not been shown to  be inadequate:  they had devoted            time  to preparing  the  case,  had  filed motions,  and  had            conferred  with Pellerito on a  number of occasions.   As for            Moore, he had entered  the case only shortly before  trial at            Pellerito's own  request  after Pellerito  sought to  replace            Fisher, but Moore was an experienced criminal trial attorney,            had  a former United States Attorney as local counsel and had            some prior familiarity with the case.  Moore had also assured            the trial  court that he was ready for trial.  On appeal this            court  affirmed   the  district  court's  refusal   to  allow            withdrawal of the guilty plea by Pellerito.  United States v.                                                         _____________            Pellerito, 878 F.2d 1535 (1st Cir. 1989).              _________                      On July  10, 1991, the present  section 2255 action            was   filed,  Pellerito  being  represented  by  yet  another                                         -3-            attorney.    In substance,  Pellerito  now  claims that  both            Fisher and Moore provided inadequate representation  and that            this circumstance vitiated his guilty plea.  Pellerito argues            for   the  first   time   that  Fisher   was  himself   under            investigation for federal  tax law violations at  the time he            represented Pellerito;  and this,  it is  alleged, distracted            Fisher  from  preparation  and  even created  a  conflict  of            interest.    Moore himself  has  now  furnished an  affidavit            asserting that,  on reflection, he  believes that he  was not            adequately prepared for trial  in June 1988.   Pellerito also            suggests (in an argument not made to the district court) that            Mario Malerba, counsel for Pellerito's co-defendant, assisted            Pellerito  in connection  with the plea  agreement but  had a            conflict  of  interest  never   properly  examined.    In  an            unpublished opinion, the  district court  denied the  section            2255 motion without an evidentiary hearing, and Pellerito now            seeks review in this court.                 At the  outset, the government contends  that the merits            need not be reached.  It says that Pellerito's present motion            merely reasserts a claim of ineffective assistance of counsel            that this court reviewed and  rejected in 1989 on Pellerito's            prior appeal.   Correctly, the government points  out that an            issue previously  settled on direct appeal  cannot be revived            by  a collateral attack under section  2255. United States v.                                                         _____________            Butt, 731 F.2d 75, 76 n.1  (1st Cir. 1984); Dirring v. United            ____                                        _______    ______                                         -4-            States, 370  F.2d 862, 864  (1st Cir.  1967).   On the  other            ______            hand, this bar obviously does not apply to a new issue and in            addition  the bar  may be  relaxed in  certain circumstances,            notably   where  a  defendant  relies  upon  substantial  new            evidence that  he had  no prior  opportunity to  present even            though it  concerns an issue  already addressed.   See, e.g.,                                                               ___  ____            Giacalone  v.  United States,  739  F.2d 40,  42-43  (2d Cir.            _________      _____________            1984); Argo v. United States, 473 F.2d 1315, 1317 (9th Cir.),                   ____    _____________            cert. denied, 412 U.S. 906 (1973).               ____________                 At least  two of Pellerito's three  main points arguably            pass muster  under  these  cases.    The  attack  on  Fisher,            although  the ineffective  assistance  of  counsel  label  is            unchanged, is now supported with new facts concerning the tax            investigation  of Fisher  himself.   By  contrast, the  Moore            affidavit  adds  almost nothing  of importance  and, standing            alone,  would warrant a summary denial of the motion; but the            charges against the two lawyers overlap in  some measure and,            to present  a complete picture,  it is convenient  to address            them both.  As  for Malerba, Pellerito's claim appears  to be            newly  conceived and was not discussed in the earlier appeal.            We  turn  therefore  to  the  question  whether  any  of  the            allegations warrants an evidentiary hearing and conclude that            none does.                 It is  familiar law that  an evidentiary hearing  is not            automatically required for a  section 2255 petition.  Rather,                                         -5-            the petitioner needs to allege facts  that, if established by            evidence,  would   justify   relief.     United   States   v.                                                     _______________            Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied,            ___________                                     ____________            470 U.S. 1058  (1985).   (Even then, no  hearing is  required            where the motion's allegations are patently incredible or are            conclusively disproven by the record.  United States v. Butt,                                                   _____________    ____            731 F.2d at 77; Dziurgot v. Luther, 897 F.2d 1222, 1225  (1st                            ________    ______            Cir.  1990)).  What facts would warrant relief is, of course,            a  matter of substantive law.   Where a  collateral attack is            made upon a  guilty plea based  on ineffective assistance  of            counsel,  the Supreme Court has instructed us that two things            need to be shown: that counsel's representation fell below an            objective  standard of  reasonableness, and  that there  is a                                                    ___            reasonable probability  that "but for counsel's  errors, [the            defendant]  would  not have  pleaded  guilty  and would  have            insisted on going  to trial."  Hill v. Lockhart, 474 U.S. 52,                                           ____    ________            58-59 (1985).                 Starting with Pellerito's  charges against Fisher, there            was  indeed a  federal investigation  of him  that apparently            ended  in   1989  with   Fisher  pleading  guilty   to  three            misdemeanor counts.  While the investigation must have been a            major concern  to Fisher,  the  district court  in its  prior            proceeding  in  August  1988  listened  to   Fisher  testify,            reviewed  his  case  preparation,  and  concluded  that   his            representation of Pellerito had been adequate.  United States                                                            _____________                                         -6-            v.  Pellerito,  701 F.  Supp.  at 287-88,  291-92.   Whatever                _________            distraction  the federal tax  investigation may  have caused,            the ultimate test of  adequate representation was what Fisher            did.   That issue the district court  has previously explored            and  laid to rest.  Pellerito's failure to establish that any            colorable defense  was overlooked in 1988,  a point discussed            below, makes  the inadequate representation charge  even less            plausible.                 Two side issues relating to Fisher require less comment.            Pellerito's new claim that Fisher had  a conflict of interest            because  of the federal tax investigation takes him nowhere.             Even assuming  that Fisher  had an  interest in  pleasing the            federal prosecutor in Pellerito's case--which is something of            a  leap--it  was  Moore  and  not  Fisher  who  superintended            Pellerito's plea agreement.   Pellerito  also complains  that            Fisher,  having  been  supplanted  by  Moore  at  Pellerito's            insistence, failed to appear in court when Pellerito's guilty            plea  was taken  under  Fed. R.  Crim.  P. 11.    Pellerito's            colloquy  with the  district court  at the  time of  the plea            makes clear that  Pellerito was satisfied with Moore  and his            local  counsel and waived Fisher's presence.  701 F. Supp. at            283.                 Turning to  Moore, the  claim that Moore  was unprepared            for  trial was  also  reviewed and  rejected by  the district            court when it  declined in  1988 to allow  withdrawal of  the                                         -7-            guilty  plea.   701 F.  Supp. at  292-93.   Moore's hindsight            affidavit  statement that he  was not prepared, contradicting            his assurance  to the trial  judge in  June 1988 that  he was            ready  for   trial,  deserves   little   weight  absent   new            information,  and the  affidavit offers  nothing significant.            Moore  now  says that  he was  retained  only one  day before            trial, rather than four days (as he stated in 1988), but  the            testimony  taken  in  1988   shows  that  he  conferred  with            Pellerito and began work  four days before trial even  though            he was formally retained  only on the day before  trial.  701            F.  Supp. at 289.   Moore's local counsel,  the former United            States Attorney, has  also filed an affidavit  saying that he            himself was  not prepared  to try  the case in  1988, but  of            course he was never expected to do so.                 In all events, it  is independently fatal to Pellerito's            claim  of  constitutional  error--whether   directed  against            Fisher's  representation   or   Moore's--that  no   one   has            demonstrated that  a substantial  defense  was overlooked  in            1988.  We are now told in fairly general terms  that a motion            should have  been filed  to suppress incriminating  tapes and            that much of  the tape evidence against  Pellerito could have            been explained away.  But there  is no showing that any valid            ground   of  suppression  was   available,  nor   do  sketchy            assertions  that  the  tapes  could  have  been   interpreted            innocently  even begin  to demonstrate  that Pellerito  had a                                         -8-            serious defense.   Such  claims by Pellerito  are conclusions            rather  than allegations of fact  requiring a hearing.    See                                                                      ___            Myatt v. United States, 875 F.2d 8, 11 (1st Cir. 1989).            _____    _____________                 Given the  lack of a plausible  defense, Pellerito could            not   prevail on his claim even if he could show that counsel            was inadequate.  Under the two-pronged requirement of Hill v.                                                                  ____            Lockhart, Pellerito  must also allege facts  that, if proved,            ________            create a "reasonable probability" that adequate counsel would            have led Pellerito not to plead guilty.  474 U.S. at 59.  See                                                                      ___            also  United States  v. Ramos,  810 F.2d  308, 314  (1st Cir.            ____  _____________     _____            1987).  No such probability has been shown in this case where            Pellerito had  ample incentive to  plead guilty in  1988 (the            exposure  to a  life sentence if  he went to  trial) and even            today he cannot point to a plausible defense.                 Finally, we  turn to Pellerito's new  allegation that he            relied heavily  in  deciding  to plead  on  help  from  Mario            Malerba, counsel  for Pellerito's co-defendant  who was  also            negotiating  a plea.  This, says Pellerito, was de facto dual                                                            ________            representation  with  a  potential for  conflict  of interest            between  the  clients;  the  threat  of  conflict  was  never            explored  by the trial judge under Fed. R. Civ. P. 44(c) (see                                                                      ___            United States v.  Mari, 526  F.2d 117 (2d  Cir. 1975),  cert.            _____________     ____                                  _____            denied, 429  U.S. 941 (1976));  and the co-defendant  in fact            ______            received a  lighter sentence.   Since this  argument was  not            made to the district court it would normally be foreclosed on                                         -9-            appeal (United States  v. Michaud,  901 F.2d 5,  7 (1st  Cir.                    _____________     _______            1990)), and it might  be foreclosed in any event  for failure            to raise it at the time  of the motion to withdraw the guilty            plea  and the original appeal, absent a showing of good cause            for this failure.   United States v. Frady, 456 U.S. 152, 167                                _____________    _____            (1982).                   In  any  event, the  claim  is answered  by  Cuyler v.                                                                ______            Sullivan, 446 U.S. 335, 350,  (l980), quoted by the  district            ________            court in another connection:   "[T]he possibility of conflict            is insufficient to impugn a criminal conviction.  In order to            demonstrate  a violation  of  his Sixth  Amendment rights,  a            defendant must establish that  an actual conflict of interest            adversely affected  his lawyer's performance."   Plainly, the            mere fact of  a different sentence for  a co-defendant, whose            role, criminal history and other characteristics may be quite            different, does not even begin to suggest "an actual conflict            of  interest adversely affect[ing]"  Malerba's performance in            whatever help he provided to Pellerito.                   The  district court's  judgment  is  summarily  affirmed                                                                 ________            pursuant to Local Rule 27.l.                                         -10-
