Rosario v. United States ( 1995 )

USCA1 Opinion

          February 3, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No.  94-1383


                                   GREGORIO ROSARIO,

                                     Petitioner,

                                          v.

                              UNITED STATES OF AMERICA,

                                     Respondent.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Douglas P. Woodlock, U.S. District Judge]
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                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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            Gregorio Rosario on brief pro se.
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            Donald  K. Stern,  United States  Attorney, and  Heidi E. Brieger,
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        Assistant United States Attorney, on brief for respondent.


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                 Per  Curiam.   Petitioner  Gregorio Rosario  appeals the
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            denial by the  United States District Court for  the District

            of  Massachusetts of  his  motion to  vacate,  set aside,  or

            correct his sentence pursuant  to 28 U.S.C.   2255.   Rosario

            alleges that the district  court erred both in the  manner in

            which it  conducted the section  2255 proceedings and  in its

            dismissal of his petition.  We affirm.

                 We  find no error in the district court's conduct of the

            section 2255  proceedings.   First, even though  the district

            court required that Rosario have standby counsel, Rosario has

            not  produced any evidence that  he lacked "a  fair chance to

            present  his case in his own  way."  McKaskle v. Wiggins, 465
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            U.S. 168,  177 (1984).    Thus, he  has  failed to  show  any

            abridgment  of  his  right  to  self  representation.1    Id.
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            Second,  we have reviewed the record  in this case, including

            the transcript of the surveillance tape, and find no abuse of

            discretion  in the  district  court's refusal  to compel  the

            government's chief  witness  to  testify  during  the  habeas

            proceedings.     See  Rule   6(a)  of  the   Rules  Governing
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            Proceedings in the United States District Court Under Section

            2255.  We likewise find absolutely no evidence of bias on the

            part  of the  district  court  in  any  of  its  rulings  and

            therefore  find no  error in  the court's  refusal to  recuse





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            1.  The legal right to self  representation in civil cases is
            guaranteed by 28 U.S.C.   1654.















            itself  from this  case.   See Liteky  v. United  States, 114
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            S.Ct.  1147,  1157  ("judicial  rulings  alone  almost  never

            constitute valid basis for a bias or partiality motion").

                 As  far as  the substantive  claims raised  in Rosario's

            habeas petition are concerned, we have reviewed carefully the

            record in this  case and the briefs of the  parties.  We find

            that the  district court adequately addressed  all the claims

            raised by Rosario in his petition.  We also find, essentially

            for  the reasons given by the district court in its memoranda

            and orders dated September 14, 1993, and March 21, 1994, that

            Rosario  has failed  to show  that he  is entitled  to relief

            under section 2255.

                 Affirmed.
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