Whittemore v. United States ( 1993 )

February 19, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1291
ROBERT A. WHITTEMORE,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Breyer, Chief Judge,
Higginbotham,* Senior Circuit Judge,
and Boudin, Circuit Judge.
David M. Sanders for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
Richard S. Cohen, United States Attorney, and James M. McCarthy,
Assistant United States Attorney, were on brief for appellee.
*Of the Third Circuit, sitting by designation.
Higginbotham, Senior Circuit Judge. Petitioner, Robert
A. Whittemore, appeals from the denial of his second petition
under 28 U.S.C. 2255 to set aside, vacate or correct his
sentence. The district court dismissed the petition as an "abuse
of the writ". We affirm.
I.
In June 1988, Whittemore was convicted of one count of
conspiracy to possess with intent to distribute cocaine, and two
counts of knowingly and intentionally distributing a quantity of
cocaine. At trial the prosecution showed that Whittemore sold
Tyrone Gray, a government informant, an ounce of cocaine for
$1,500 on one occasion, and two kilograms worth $72,000 on
another occasion. The prosecution also showed that Whittemore
conspired with Gray and a woman named Lisa Obremski to obtain
cocaine in Florida and distribute it in Maine.
Following his conviction, Whittemore entered into a
cooperation agreement with the government in which he waived the
right of direct appeal of his conviction. The government in turn
gave Whittemore "use immunity" for his cooperative statements and
agreed to notify the sentencing court of the extent of
Whittemore's cooperation. Thereafter, in August 1988, Whittemore
was sentenced to imprisonment for 15 years on all three counts,
to be served concurrently, and 10 years of supervised release on
the two counts of distribution, to run concurrently.
On April 25, 1991, Whittemore wrote to the district
court, requesting the court to issue an order stating that his
sentence was subject to parole. The court treated the letter as
a motion to correct a sentence under Rule 35(a) of the Federal
Rules of Criminal Procedure. The court held that the charges
under which Whittemore was convicted were subject to the Anti-
Drug Abuse Act of 1986 and therefore did not permit parole.
On August 19, 1991, Whittemore filed pro se his first
2255 petition. In this first petition, Whittemore again raised
the issue of whether he was appropriately precluded from
consideration for parole by the provisions of the Anti-Drug Abuse
Act of 1986. On October 17, 1991, the district court once more
found that Whittemore's conviction was clearly subject to the
non-parolable provisions of the Anti-Drug Abuse Act and denied
his petition without an evidentiary hearing.
On November 12, 1991, Whittemore filed, again pro se, a
second 2255 petition. This time, Whittemore raised three
issues as grounds to vacate or correct his sentence. First,
Whittemore claimed that Tyrone Gray gave false testimony for the
prosecution at Whittemore's trial, thereby causing him to be
convicted. Second, he claimed that Lisa Obremski gave false
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testimony at his sentencing hearing, thereby causing the
sentencing judge to impose a longer term of imprisonment.
Finally, Whittemore claimed that he was entitled to credit
against his sentence for time served prior to his conviction.
On December 3, 1991, the government moved to dismiss
Whittemore's second petition on the ground, among other things,
that Whittemore alleged claims in the petition which he could
have asserted in the earlier petition. On December 7, 1991,
Whittemore responded to the government's motion. In a letter to
the court, Whittemore explained why his second petition should
not be dismissed. Whittemore wrote in part:
I did not know that when I filed my first motion I
should have put these other points in as well. My
first motion was done by a friend that worked in the
law library. Had I understood this their [sic] are
some other points I would have made on this last one.
On January 15, 1992, the district court denied
Whittemore's second petition without an evidentiary hearing. The
court found that the government had carried its burden of showing
that Whittemore had abused the writ of habeas corpus. The court
also determined that Whittemore had failed to show that failure
to entertain his second petition would result in a miscarriage of
justice. As to Whittemore's claim that he was entitled to credit
for time served prior to his conviction, the court concluded that
Whittemore had not exhausted his administrative remedies by
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failing to pursue his claim with the Bureau of Prisons. In any
event, the court reasoned, even if Whittemore had exhausted his
administrative remedies, he would not be entitled to credit for
time served because he was out on bail and not incarcerated prior
to his conviction.
On appeal, Whittemore, now represented by counsel, has
abandoned his claim that he is entitled to credit against his
sentence for time served prior to conviction. Whittemore also
does not challenge on appeal the court's finding that no
fundamental miscarriage of justice would result from a failure to
entertain the claims in the second 2255 petition.1 Instead,
Whittemore presents three main arguments: 1) that the district
court erred in not giving him notice that his second petition was
subject to dismissal for abuse of the writ; 2) that the abuse of
the writ standard is inapplicable because his first pro se
petition "was filed out of ignorance" and, therefore "had no
1In responding to the district court's finding that no
miscarriage of justice would result from denying his second
petition, Whittemore writes in his brief on appeal: "It is
not Mr. Whittemore's purpose within the context of this
appeal to challenge the district court `miscarriage of
justice' analysis." Appellant's Brief at 8-9. Accordingly,
we need not address in detail the court's miscarriage of
justice analysis. It suffices to say that we would agree
with the district court's conclusion that, under McCleskey
v. Zant, 111 S.Ct. 1454 (1991), no miscarriage of justice
would result from the denial of Whittemore's second
petition.
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substantive meaning"; and 3) that, even if the abuse of the writ
analysis is applicable to the second petition, he did satisfy the
burden to show cause for his failure to raise his claims in the
earlier 2255 petition.
II.
The district court correctly determined that the
question of whether a petitioner has abused the writ of habeas
corpus is governed by McCleskey v. Zant, 111 S.Ct. 1454 (1991).
In McCleskey, the Supreme Court held that "a petitioner can abuse
the writ by raising a claim in a subsequent petition that he
could have raised in the first, regardless of whether the failure
to raise it earlier stemmed from deliberate choice." Id., 111
S.Ct. at 1468. The burden is on the government to first plead
abuse of the writ. Id. at 1470. The government satisfies this
burden "if, with clarity and particularity, it notes petitioner's
prior writ history, identifies the claims that appear for the
first time, and alleges that petitioner has abused the writ." Id.The burden to disprove abuse of the writ then becomes
petitioner's. Id. In order to satisfy this burden, petitioner
must show cause for failing to raise earlier the claim presented
in the subsequent petition. Id. To show cause, petitioner must
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show that some external impediment, such as governmental
interference or the reasonable unavailability of the factual or
legal basis for a claim, prevented the claim from being raised
earlier. Id. at 1472. If petitioner cannot show cause "the
failure to raise the claim in an earlier petition may nonetheless
be excused if he or she can show that a fundamental miscarriage
of justice would result from a failure to entertain the claim."
Id. at 1470.
A.
As a preliminary matter, Whittemore argues on appeal
that the district court erred in not giving him notice that his
second petition was subject to dismissal. Whittemore's argument
goes as follows: Rule 9(b) of the Rules Governing Section 2255
Proceedings provides that a second or successive 2255 motion may
be dismissed if the court finds that petitioner's failure to
assert grounds in an earlier petition constituted abuse of
process. Following Rule 9(b) in the appendix of forms is a model
form to be used in 2255 petitions. This form "was clearly
drafted for the benefit of the pro se litigant." The form is
designed to give the pro se petitioner specific notice that the
petition is subject to dismissal. Whittemore, at the time of the
filing of his second 2255 petition, was a pro se litigant. The
district court never sent the Rule 9(b) form to Whittemore.
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Therefore, Whittemore argues, this court should reverse the
district court's order dismissing his second petition.
We find this argument unconvincing. The fact of the
matter is Whittemore did have notice that his second petition was
subject to dismissal. The form which he used to file the first
2255 petition contained the warning: "CAUTION: If you fail to set
forth all ground[s] in this motion, you may be barred from
presenting additional grounds at a later date." Furthermore,
Whittemore actually responded to the government's motion to
dismiss his second petition. In a letter to the court, he
explained that at the time he filed his first petition he did not
know that he was supposed to present all of his claims at once.
Finally, we have never held in this circuit that failure to give
specific notice to a petitioner is alone grounds to reverse the
district court's dismissal of a 2255 petition for abuse of the
writ, especially when, as here, the petitioner had actual notice
that the petition was subject to dismissal. See McLaughlin v.
Gabriel, 726 F.2d 7, 10 (1st Cir. 1984) (pleading abuse of the
writ puts petitioner on notice to show cause why claim raised in
subsequent petition was not brought in an earlier petition).
B.
Whittemore next argues that the McCleskey abuse of the
writ standard should not be applied to his second petition
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because his first petition "was filed out of ignorance" and,
therefore "had no substantive meaning." As we understand
Whittemore's argument, the first 2255 petition raised an issue
which the court had already denied in Whittemore's Rule 35
motion; namely the issue of whether his sentence was subject to
parole. The district court, in denying the first 2255
petition, did not rule on the merits of the claim, since that
claim had already been decided in the Rule 35 motion. Therefore,
Whittemore argues, for purposes of determining whether he has
abused the writ, the first 2255 petition should not count, and
the second petition should in effect be considered the first.
Whittemore has not cited any case to support this
rather ingenious proposition. In any event, the point of the
doctrine of abuse of the writ, as explained in McCleskey, is not
what petitioner alleges in the first 2255 petition, but rather
what petition does not allege in the first petition. McCleskey,
111 S.Ct. at 1470. Thus, it is not relevant that the claim
Whittemore made in the first petition was one which had already
been decided by the court. The point is that in bringing the
first petition Whittemore was obligated to present all of the
claims which he now raises in the second petition.
C.
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Whittemore's remaining contention is that, even if the
abuse of the writ analysis is applicable to his second petition,
he did satisfy the burden to show cause for his failure to raise
his claims in the earlier 2255 petition. Specifically
Whittemore explains that the issues raised in the second 2255
motion were not raised in the first 2255 motion because he did
not have the funds to hire an attorney, he was not represented by
counsel at the time of both motions, and he was unfamiliar with
the law.
In Andiarena v. U.S., 967 F.2d 715 (1st Cir. 1992), we
considered the pro se appeal of a petitioner from the denial of
his second 2255 petition by the district court. As an attempt
to establish cause for failure to raise his claims in a prior
petition, petitioner explained that at the time he filed his
first petition he did not have access to the transcripts of his
trial. We held petitioner's explanation insufficient to show
cause. Andiarena, 967 F.2d at 718. We reasoned that under the
standard established in McCleskey, "to establish `cause' for
failure to raise a claim in a prior petition, one must show that
some external impediment, such as government interference or the
reasonable unavailability of the factual and legal basis for a
claim prevented it from being raised earlier." Id.-10-
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Here, Whittemore has failed to establish cause for his
failure to raise his claims in the first petition. The factual
and legal basis for Whittemore's 2255 petition is that the key
prosecution witness at his trial gave false testimony, causing
him to be convicted, and that a key witness at his sentencing
hearing also gave false testimony, causing him to receive a
longer term of imprisonment. Whittemore has not shown the
"reasonable unavailability of the factual and legal basis" for
his claim. Nor has Whittemore shown some other "external
impediment" for his failure to raise the claim. Whittemore's
basic claim is that his sentence should be vacated because two
key prosecution witnesses lied. This is a straightforward claim
which he could have presented at the time of his first petition,
even though he did not have the funds to hire counsel and even
though he was unfamiliar with the law.
The Supreme Court held in McCleskey that a petitioner's
explanation for failing to raise a claim in an earlier petition
must be based on some "objective factor external to the defense."
McCleskey, 111 S.Ct. at 1470. The reasons Whittemore advances
for failing to raise his claim in the first petition are not
based on any objective factor external to his defense. We
therefore cannot rationally conclude that Whittemore's ability to
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raise his claim in the earlier petition was somehow impeded by
the fact that he was acting pro se at the time.
For the foregoing reasons, we will affirm the order of
the district court dismissing Whittemore's second petition under
28 U.S.C. 2255.
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