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USCA1 Opinion
May 19, 1993
[NOT FOR PUBLICATION]
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No. 92-2329
RICHARD A. NAZZARO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Richard A. Nazzaro on brief pro se.
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A. John Pappalardo, United States Attorney, and Alexandra Leake,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Petitioner Richard A. Nazzaro, a
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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.
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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
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(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.
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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
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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
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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.
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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.
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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.
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successive motion may be dismissed if the
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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
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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.
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Sykes, 433 U.S. 72 (1977). Thus, once the government
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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,
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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.
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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
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motions. Thus, he has not established the requisite "cause"
under McCleskey.
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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.
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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
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McCleskey, the district court determined that the petitioner
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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
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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,
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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
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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
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counsel from constructing or raising a
claim."
Id. at 1472 (citation omitted).
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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
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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
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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.
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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
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1470. The McCleskey Court emphasized that this standard
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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
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"`colorable showing of factual innocence'" to meet this test.
See id. at 1471 (quoting Kuhlmann v. Wilson, 477 U.S. 436,
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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
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States, 967 F.2d 715, 719 (1st Cir. 1992) (per curiam). In
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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
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court's decision to dismiss petitioner's third petition under
2255.
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Document Info
Docket Number： 92-2329
Filed Date： 5/20/1993
Precedential Status： Precedential
Modified Date： 9/21/2015