United States v. Glidden ( 1996 )

USCA1 Opinion

        February 22, 1996       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-1246



                                JOSEPH ROBERT GLIDDEN,



                                Petitioner, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                Respondent, Appellee.

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        No. 95-1372



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                JOSEPH ROBERT GLIDDEN,



                                Defendant, Appellant.

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                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                            FOR THE DISTRICT OF MAINE



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

                                Torruella, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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            Joseph R. Glidden on brief pro se.
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            Jay P.  McCloskey, United  States Attorney, and  F. Mark  Terison,
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        Assistant U.S. Attorney, on brief for appellee.



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                 Per Curiam.  Joseph  Robert Glidden appeals the district
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            court's dismissal of  his second motion filed pursuant  to 28



            U.S.C.   2255.  Glidden filed identical copies of this second



            motion in each of his two underlying district court  criminal



            cases.  The district court entered a judgment of dismissal in



            each  case and  we have  consolidated Glidden's  appeals from



            each judgment.



                 We have reviewed the parties'  briefs and the record  on



            appeal.  We agree  with the district court's conclusion  that



            Glidden  has abused  the  writ, essentially  for the  reasons



            stated  in the magistrate-judge's  recommended decision dated



            December 15, 1994.  We,  therefore, affirm the district court
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            judgments  that entered on January  30, 1995, in  each of the



            two  underlying district court  cases, dismissing appellant's



            second  motion, filed  pursuant to  28 U.S.C.    2255,  as an



            abuse of the writ.  We add only the following.



            1.   On appeal,  Glidden  seeks to  pursue  a claim  that  he



            received ineffective assistance  of appellate counsel  due to



            Attorney Joseph L. Ferris' abandonment of his direct criminal



            appeals  that were  dismissed  for want  of prosecution  when



            counsel  failed to file a  brief.  United  States v. Glidden,
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            Nos. 90-1611; 90-1612, (1st Cir. Sept. 27, 1991) (unpublished



            order of dismissal).  This claim was, at best, presented only



            in skeletal form in Glidden's  second   2255 motion.   In any



            event,  in  his objections  to  the magistrate's  recommended







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            decision,  Glidden  did  not   raise  any  objection  to  the



            magistrate's  failure to  address  this claim  and, thus,  is



            precluded  from obtaining  appellate  review of  this  claim.



            Keating  v. Secretary of Health & Human Servs., 848 F.2d 271,
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            275 (1st Cir. 1988) (per  curiam) (concluding that only those



            issues fairly  raised by  the objections to  the magistrate's



            report  are subject to review in the district court and those



            not preserved by such objection are precluded on appeal); see
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            also Henley Drilling Co. v. McGee, 36 F.3d 143, 151 (1st Cir.
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            1994) (rejecting the contention that a litigant need not file



            an  objection to a magistrate's failure to address a claim to
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            preserve appellate review).



                 Further,   even  assuming  the  claim  was  sufficiently



            developed below  beyond skeletal form  in this second    2255



            motion and then sufficiently  preserved for appeal, i.e., not



            waived  by failing  to  raise it  in  his objections  to  the



            magistrate's  recommendation,  it  is  not  a  miscarriage of



            justice to fail to consider this claim in this second    2255



            motion  as   Glidden  had   both  sufficient  knowledge   and



            opportunity  to timely raise this  claim in his  first   2255



            motion.  Glidden was  informed in April 1992 that,  if he was



            claiming  that  he  had  not authorized  Attorney  Ferris  to



            abandon  his direct  criminal appeals,  he should  inform the



            district  court of this contention  via a    2255 motion and,



            although  by  this  time  Glidden had  appointed  counsel  --







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            Attorney  O'Brian --  to represent  him on  his first    2255



            motion  in the  district court,  Glidden  did not  raise this



            claim of Attorney Ferris' alleged unauthorized abandonment of



            appeals among the two new claims submitted in September  1992



            to the  district court  as an amendment  to his first    2255



            motion.



            2.   On appeal,  Glidden also  seeks to  raise for the  first



            time new grounds to support a claim of ineffective assistance



            of  counsel  with  respect  to  Attorney  James  Horton,  who



            represented  Glidden  at  his  change  of  plea  and  at  his



            sentencing.   Having failed  to present these  grounds in the



            district court,  Glidden is  precluded from raising  them for



            the  first time on appeal.   Johnston v.  Holiday Inns, Inc.,
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            595 F.2d 890, 894 (1st Cir. 1979).  No miscarriage of justice



            will occur if we decline to address them.  Indeed, all appear



            meritless.



                 The judgments of the district court are affirmed.
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