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USCA1 Opinion
June 27, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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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]
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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.
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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).
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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).
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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
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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.
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In addition, Hart has not demonstrated any resulting
prejudice. Even assuming, arguendo, that the testimony was
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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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Document Info
Docket Number： 92-1484
Filed Date： 6/27/1994
Precedential Status： Precedential
Modified Date： 9/21/2015