United States v. Zuleta-Alvarez ( 1995 )

USCA1 Opinion

        December 12, 1995       [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-1256



                              UNITED STATES OF AMERICA,



                                 Plaintiff, Appellee,



                                          v.



                               JOHN J. ZULETA-ALVAREZ,



                                Defendant, Appellant.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                       [Hon. Gene Carter, U.S. District Judge]
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                                 ____________________



                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
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                                 ____________________



            John J. Zuleta-Alvarez on brief pro se.
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            Jay P. McCloskey,  United States  Attorney, and  F. Mark  Terison,
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        Assistant United States Attorney, on brief for appellee.





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                      Per Curiam.   Petitioner-appellant John J.  Zuleta-
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            Alvarez appeals pro se from the district court's dismissal of
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            his second petition pursuant to 28  U.S.C.   2255 as an abuse



            of  the  writ.   Nothing  in  our  November  3, 1992  opinion



            affirming the  denial of  petitioner's first    2255 petition



            was  intended to indicate that an "abuse of the writ" defense



            would be  unavailable if petitioner filed  a second petition.



            We  merely  intended  to  alert the  pro  se  petitioner that
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            although the issue he raised for the first time on appeal did



            not merit  relief under  our narrowly circumscribed  scope of



            review, it could be raised in  a new   2255 petition, subject



            to any available defenses (including abuse of the writ).



                      Petitioner's  reliance  upon   Sanders  v.   United
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            States,  373 U.S. 1 (1963), is misplaced.  McCleskey v. Zant,
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            499  U.S. 467  (1991),  established the  cause and  prejudice



            standard  that  now governs  in  abuse  of  the  writ  cases.



            Petitioner has failed to  demonstrate "cause" for his failure



            to raise the two  issues presently before  us in his first



            2255 petition.   We disagree  that this  court's decision  in



            United  States v.  O'Campo, 973  F.2d  1015 (1st  Cir. 1992),
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            constituted   new  law   such  that   the  legal   basis  for



            petitioner's present claims  was not reasonably available  at



            the  time that  his first  petition was  filed.   The O'Campo
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            holding relied  upon a straightforward  interpretation of the



            language  of  the   then-current  United  States   Sentencing







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            Guidelines  and  the commentary  thereto.  The  same relevant



            language  was  contained  in  the  Guidelines  in  effect  in



            December  1991, when  petitioner  filed his  first  petition.



            Therefore, the language of the Guidelines themselves provided



            a legal basis for petitioner's present claims.



                      Petitioner  has failed  to  satisfy  his burden  of



            showing  cause  for  failing  to  raise  earlier  the  claims



            contained in his second    2255 petition.   Nor has he  shown



            that a "fundamental miscarriage  of justice would result from



            a failure to entertain the claim[s]."  McCleskey v. Zant, 499
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            U.S. at 495.  Therefore, we affirm the district court's order
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            dismissing  petitioner's second  petition under  28  U.S.C.



            2255 as an abuse of the writ.























































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