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USCA1 Opinion
December 14, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2258
LEO R. LAVIGNE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
____________________
No. 95-1034
LEO R. LAVIGNE,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Lynch, Circuit Judges. ______________
____________________
Leo R. Lavigne on brief pro se. ______________
Paul M. Gagnon, United States Attorney, and Peter E. Papps, First ______________ ______________
Assistant United States Attorney, on Motion for Summary Disposition
for appellee.
____________________
____________________
Per Curiam. Pro se petitioner Leo Lavigne appeals __________ ___ __
two district court orders that respectively denied his motion
to vacate his sentence under 28 U.S.C. 2255 and his motion
for relief from that denial under Fed. R. Civ. P. 60(b)(6).
We have carefully reviewed the record and the parties' briefs
on appeal. We affirm both district court orders. We comment
briefly on petitioner's main arguments.
1. Petitioner maintains that he is entitled to
relief from his sentence because his defense attorney
rendered ineffective assistance by failing to raise certain
arguments at petitioner's sentencing hearing. More
specifically, petitioner claims that a prior state sentence
was based on conduct that was part of his federal offense,
and therefore his counsel should have objected to the
inclusion of this sentence in the computation of petitioner's
criminal history score under U.S.S.G. 4A1.2(a)(1) (1991).
Petitioner also claims that counsel should have moved to
reduce his federal sentence by the amount of time he had
already served on his prior state sentence under U.S.S.G.
5G1.3(b), n.3.
Both of these claims are based on petitioner's
conclusory assertion that his prior state sentence arose from
conduct that was part of his federal offense. This assertion
is based on two factual allegations: (1) that petitioner's
state and federal convictions occurred within the same
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general time frame of the conspiracy charged in the federal
indictment (i.e., 1984-1991), and (2) that the cocaine from
petitioner's prior conviction was included in the cocaine
that was attributed to him at his federal sentencing. The
fact that petitioner's state and federal offenses occurred
within the same general time frame is not alone sufficient to
establish that his state offense constituted conduct that was
part of his federal offense. See United States v. Escobar, ___ _____________ _______
992 F.2d 87, 90 (6th Cir. 1992); United States v. Kerr, 13 ______________ ____
F.3d 203, 205-06 (7th Cir. 1993), cert. denied, 114 S. Ct. _____ ______
1629 (1994). Thus, to the extent that petitioner's
ineffective assistance claim is based on this factual
allegation, it is plainly inadequate. Petitioner's claim
that the cocaine from his prior state conviction was included
in the quantity of cocaine that was attributed to him at his
federal sentencing is conclusively refuted by the record.
The presentence report (PSR, 7A) discloses that the two
eight-ounce cocaine purchases upon which petitioner's
sentence was based occurred in April and November of 1989.
Petitioner's state conviction was based on the seizure of
approximately five grams of cocaine from petitioner's home on
March 2, 1989. See State v. Lavigne, 588 A.2d 741, 743 ___ _____ _______
(1991). Obviously the cocaine that was seized in
petitioner's home in March 1989 could not have been included
in either of the two eight-ounce purchases that he made the
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following April and November. Thus, petitioner's contrary
claim is conclusively refuted by the record.
As petitioner's claim that the cocaine from his
prior conviction was included in the quantity attributed to
him at his federal sentencing is conclusively refuted by the
record, and petitioner has not alleged sufficient facts that
otherwise support his claim that his state offense was part
of the conduct that led to his federal conviction, petitioner
has failed to show that counsel rendered ineffective
assistance by failing to object to the inclusion of his prior
sentence in his criminal history score under U.S.S.G.
4A1.2(a)(1) and by failing to seek a sentence reduction under
U.S.S.G. 5G1.3(b), n.3. See Barrett v. United States, 965 ___ _______ _____________
F.2d 1184, 1186 (1st Cir. 1992) (summary dismissal is proper
where a 2255 motion is inadequate on its face, or is
conclusively refuted as to the alleged facts by the files and
records of the case, or where the alleged grounds for relief
are based on bald assertions without sufficiently particular
and supportive factual allegations); Acha v. United States, ____ ______________
910 F.2d 28, 30 (1st Cir. 1990) (court of appeals may affirm
on any ground supported by the record).
2. Petitioner contends that the district court
erred in denying his Rule 60(b)(6) motion because defense
counsel failed to discuss his intent to seek a minor
participant adjustment with him and further failed to inform
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petitioner that he had the right to appeal the district
court's adverse ruling on this issue. We review the denial
of Rule 60(b) motions only for abuse of discretion. See ___
Hoult v. Hoult, 57 F.3d 1, 3 (1st Cir. 1995). "[A]bsent _____ _____
exceptional circumstances, motions under Rule 60(b)(6) must
raise issues not available to the moving party before final
judgment entered." Vasapolli v. Rostoff, 39 F.3d 27, 37 n. 8 _________ _______
(1st Cir. 1994)(citations omitted). Petitioner has not
alleged any good reason why these ineffective assistance
claims could not have been raised in his original 2255
motion.1 Thus, the district court did not abuse its
discretion in denying the Rule 60(b)(6) motion.
As petitioner has not raised any meritorious
arguments, the judgment dismissing his 28 U.S.C. 2255 motion
is affirmed. The order denying his Rule 60(b)(6) motion also ________
is affirmed. See Local Rule 27.1. ________ ___
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1. Petitioner contends that exceptional circumstances are
present because he did not receive the government's
opposition to his 2255 motion until recently. Even if that
is so, we fail to see how that prevented petitioner from
cataloging counsel's alleged errors in his original motion.
Moreover, petitioner failed to raise this argument below,
therefore it is not properly before us.
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Document Info
Docket Number： 94-2258
Filed Date： 12/14/1995
Precedential Status： Precedential
Modified Date： 9/21/2015