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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July 20, 1992 [NOT FOR PUBLICATION]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]
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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.
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Mueller, III, Assistant Attorney General, Mary Lee Warren,
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Bruce A. Pagel, Hope P. McGowan, and Marietta I. Geckos, U.
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S. Department of Justice, on brief for appellee.
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Per Curiam. Giuseppe Pellerito filed a petition in the
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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
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(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.
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Pellerito, 878 F.2d 1535 (1st Cir. 1989).
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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.
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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
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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.,
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Giacalone v. United States, 739 F.2d 40, 42-43 (2d Cir.
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1984); Argo v. United States, 473 F.2d 1315, 1317 (9th Cir.),
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cert. denied, 412 U.S. 906 (1973).
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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.
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Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied,
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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,
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731 F.2d at 77; Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st
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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
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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,
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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
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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
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Myatt v. United States, 875 F.2d 8, 11 (1st Cir. 1989).
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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.
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Lockhart, Pellerito must also allege facts that, if proved,
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create a "reasonable probability" that adequate counsel would
have led Pellerito not to plead guilty. 474 U.S. at 59. See
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also United States v. Ramos, 810 F.2d 308, 314 (1st Cir.
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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
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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
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United States v. Mari, 526 F.2d 117 (2d Cir. 1975), cert.
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denied, 429 U.S. 941 (1976)); and the co-defendant in fact
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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.
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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
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(1982).
In any event, the claim is answered by Cuyler v.
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Sullivan, 446 U.S. 335, 350, (l980), quoted by the district
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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
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pursuant to Local Rule 27.l.
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Document Info
Docket Number： 92-1159
Filed Date： 7/20/1992
Precedential Status： Precedential
Modified Date： 9/21/2015