United States v. Pellerito

• Court: Court of Appeals for the First Circuit
• Decided: July 20, 1992
• Docket: 92-1159
• Status: Published

Opinion

USCA1 Opinion

          July 20, 1992         [NOT FOR PUBLICATION]

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            No. 92-1159

                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                                 GUISEPPE PELLERITO,

                                Defendant, Appellant.

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                     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.
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                                 ____________________

                 Robert W. Odasz on brief for appellant.
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                 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

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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

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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
            ____                                        _______    ______

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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,

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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
                                                            _____________

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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

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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

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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

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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.

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