Georgacarakos v. J.D. Lamer , 64 F.3d 654 ( 1995 )

64 F.3d 654

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
Peter N. GEORGACARAKOS, Petitioner,
v.
J.D. LAMER, Respondent.

No. 95-1132.

United States Court of Appeals,
First Circuit.

Aug. 16, 1995.

Peter N. Georgacarakos on brief pro se.

Jay P. McCloskey, United States Attorney, and Michael M. DuBose, Assistant United States Attorney, on motion for summary dismissal for appellee.

D.Me.

AFFIRMED.

Before TORRUELLA, Chief Judge, SELYA and STAHL, Circuit Judges.

PER CURIAM.

1

Appellant Peter N. Georgacarakos appeals from the denial of a motion to vacate his sentence filed under 28 U.S.C. Sec. 2255. After reviewing the record and the parties' briefs, we affirm the judgment of the district court for the reasons set forth in the December 13, 1994 Recommended Decision of the magistrate judge (adopted by the district court judge on December 27, 1994). We add the following comments.

2

First, it is clear that appellant's claims in the current Sec. 2255 motion are based on the same ground as the claim he presented in the previous Sec. 2255 proceeding-counsel provided ineffective assistance by failing to raise an entrapment defense. Thus, the district court did not err in dismissing appellant's motion as successive. See Rule 9(b), Rules Governing Section 2255 Proceedings in the United States District Courts ("[a] second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits").

3

Second, appellant's assertion that his attorney did not present any defense at trial plainly is wrong; counsel specifically argued that venue was not proper in the district of Maine. That we rejected this argument on direct appeal does not transform appellant's trial into one of which it could be said that no defense was mounted. As a result, even if we were to consider appellant's Sec. 2255 motion on the merits, it would fail.

4

Affirmed.