Hart v. United States

Opinion

USCA1 Opinion

June 27, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 92-1484 

                                    WILFRED HART,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                                Stahl, Circuit Judge.
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                                 ____________________

            Wilfred Hart, Junior on brief pro se.
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            Jay  P.  McCloskey,  United  States  Attorney,  and  Margaret   D.
            __________________                                   _____________
        McGaughey, Assistant United  States Attorney, on Memorandum of  Law in
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        Support of Motion for Summary Disposition, for appellee.

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Per  Curiam.    On  March   23,  1987,  petitioner-
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            appellant Wilfred Hart,  Jr. was indicted in the  District of

            Maine on a fourteen-count third superseding indictment  which

            alleged a  number of narcotics offenses  and two conspiracies

            to possess with intent  to distribute cocaine.  After  a jury

            trial, Hart was convicted on June  1, 1988.  On May 16, 1991,

            this  court  affirmed  Hart's conviction  on  direct  appeal.

            United States v. Hart, 933 F.2d 80 (1st Cir. 1991).
            _____________    ____

                 On  April  1,  1991,  while  Hart's  direct  appeal  was

            pending, Hart filed  a petition to  vacate sentence under  28

            U.S.C.    2255.  He  filed an  amended petition on  April 22,

            1991.    Although a  magistrate  judge  recommended that  the

            petition be  denied without prejudice because  of the pending

            appeal,   the  district   court  took   no  action   on  this

            recommendation.   On  May  15, 1991,  and,  after the  direct

            appeal had been decided, on November 12, 1991 and December 2,

            1991, Hart filed supplemental   2255 petitions.   On February

            12,  1992, the  district court  adopted a  magistrate judge's

            recommended decision that all  of Hart's   2255  petitions be

            dismissed.  Hart appeals.  We affirm.

Issues already resolved on direct appeal
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Of  the eight  issues  Hart raises  in  his brief,  five

            already have been resolved by this court in the direct appeal

from Hart's conviction: (1) ineffective assistance of counsel

            in  general,  id. at  82-83;  (2)  ineffective assistance  of
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            counsel on  the specific ground  that Hart's  court-appointed

            trial   counsel  failed  to  produce  several  witnesses  who

            allegedly  would   have  testified   in  support  of   Hart's

            contention  that  the  substance  Hart was  dealing  was  not

            cocaine, but incense,  id. at 83; (3 &  4) Hart's two similar
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            arguments  that there was  only a  single conspiracy,  so his

            conviction    on    two    different     conspiracy    counts

            unconstitutionally placed him in  double jeopardy, id. at 85-
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            86; and  (5)  Hart's argument  that  the district  court,  by

            granting   a  motion   entitled  "Motion   ...  on   Lack  of

            Jurisdiction for Sentencing with Federal Question," in effect

            ruled  that it had no  jurisdiction to sentence  Hart, id. at
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            83-84.  Absent  some extraordinary  circumstance not  present

            here,  we will  not reconsider  by way  of  collateral review

            arguments we have already resolved on direct  appeal.  United
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            States v. Butt, 731 F.2d 75, 76 n.1 (1st Cir. 1984).
            ______    ____

Pending motions and grounds for relief
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Turning to Hart's  remaining three issues, Hart  alleges

            that  the district  court was  without authority  to enter  a

            final judgment  against him, and  that this court  is without

            appellate  jurisdiction, because  a number of  Hart's motions

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and  grounds for  relief remained  undecided in  the district

            court when the district court dismissed his   2255 petitions.

                 The  district  court's   order  of  dismissal,  however,

            expressly  denied  all of  Hart's  pending motions,  stating,

            "Hart's  remaining  motions  are  wholly  without  merit  and

            warrant  summary dismissal."    No  motions remained  pending

            thereafter.

                 Hart points  out that  neither the magistrate  judge nor

            the district court expressly  discussed each and every ground

            for relief set forth in his   2255 petitions.   He appears to

            argue that those  grounds for relief that were  not mentioned

            remain  pending as well.  In fact, however, a dismissal order

            is final, and  effectively dismisses the  matter to which  it

            relates,  even  though  the   order  may  not  mention  every

            particular  argument or  ground for  relief the  parties have

            raised.    Absent some  indication  from  the  court  to  the

            contrary,  a   dismissal  order  is   ordinarily  deemed   to

            implicitly  reject all  arguments or  grounds for  relief not

            specifically  discussed.   Accordingly, nothing  in  Hart's  

            2255 petitions remained pending.

Failure to follow   2255 rules
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Hart next  claims that the district  court erred because

            it failed  to follow  Rule 3  of the  Rules Governing    2255

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Proceedings  in  the  United  States District  Courts,  which

            states that  the clerk  of the  district court "shall  . .  .

            enter [a   2255 petition] on  the docket in his office in the

            criminal action in which was entered the judgment to which it

            is directed."  According to  Hart, the clerk instead assigned

            Hart's original    2255 petition  a separate number,  and did

            not enter it on the docket of Hart's prior criminal action.

                 We  reject  this  claim  because Hart  says  nothing  to

            suggest that this clerical  error, if it occurred, prejudiced

            him  in any  way.   Thus, Hart's  contentions, even  if true,

            provide no basis for   2255 relief.

Alleged perjury of government witnesses 
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Finally,  Hart  alleges  that the  government  knowingly

            permitted several of its witnesses to give perjured testimony

            at his  trial.  Hart did  not raise this issue  in his direct

            appeal, and he has  said nothing to  suggest that he did  not

            know of the alleged perjury at the time of his direct appeal.

            Hart  is therefore precluded from  raising the matter  in a  

            2255 context unless he can establish cause for the procedural

            default and resulting actual prejudice.  Smith v. Murray, 477
                                                     _____    ______

            U.S. 527, 536 (1986); Velarde v. United States, 972 F.2d 826,
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            827  (7th Cir. 1992); Murchu  v. United States,  926 F.2d 50,
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            53-54 n.4 (1st Cir.), cert. denied, 112 S.Ct. 99 (1991).
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Hart  has not put forward  any cause for  the failure to

            raise this issue on direct appeal.  Although Hart has claimed

            that  his appellate  counsel was  ineffective, Hart  raised a

            number of issues pro se in his direct appeal, in  addition to

            the issues raised by counsel.  Hart, supra, 933 F.2d at 82.
                                           ____  _____

                 In  addition, Hart  has not  demonstrated any  resulting

            prejudice.   Even assuming, arguendo, that  the testimony was
                                        ________

            false, Hart has made  no showing, and the record  contains no

            evidence to  suggest, that the  government may have  known or

            should  have known of any perjury, or that the government may

            have induced it in any way.   Consequently, Hart could not be

            entitled  to a  new  trial based  on  the allegedly  perjured

            testimony.    Velarde,  supra,  972  F.2d  at  829.    Hart's
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            allegations  of  perjured  testimony  are  accordingly barred

            because of Hart's procedural default.

Conclusion 
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We  have considered  all of  Hart's other  arguments and

            find them meritless.

                 The  district  court's  denial of  Hart's  petitions  to

            vacate sentence under 28 U.S.C.   2255 is affirmed.
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