Rodriguez v. United States ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-2322





                                   ANGEL RODRIGUEZ,



                                Petitioner, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                Respondent, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Edward F. Harrington, U.S. District Judge]
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                                        Before



                                 Selya, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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            Angel Rodriguez on brief pro se.
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            Donald K. Stern, United  States Attorney, and  Richard L. Hoffman,
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        Assistant United States Attorney, on brief for appellee.





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                                  December 12, 1997

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                      Per Curiam.  Appellant Angel Rodriguez appeals from
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            the denial of his motion filed  under 28 U.S.C.   2255.   For



            the following reasons, we agree with the district court  that



            the motion was meritless.



                      1.   Appellant's claim  that the forfeiture  of his



            property  was excessive  under the  Eighth  Amendment is  not



            cognizable in a   2255 proceeding since  appellant seeks only



            relief  from a  monetary-type penalty  and  not release  from



            confinement.   See Smullen v.  United States, 94 F.3d  20, 25
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            (1st Cir.  1996)  (holding that  a  claim that  defendant  is



            entitled to  a reduced  restitution order  falls outside  the



            scope of   2255).



                      2.    Appellant's   argument  that  the  forfeiture



            violates the  prohibition against  double jeopardy  fails for



            the simple reason that the forfeiture was imposed in the same
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            proceeding that resulted in appellant's  conviction.  Compare
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            Department  of Revenue  v.  Kurth Ranch,  511  U.S. 767,  784
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            (1994) (the collection of a  tax on dangerous drugs sought in



            a   separate  proceeding   initiated   subsequently  to   the
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            termination  of  the  proceeding  in  which  defendants  were



            convicted violates the prohibition against double jeopardy; a



            second  punishment   "must  be   imposed  during   the  first



            prosecution or not at all").



                      3.    Appellant's  claims   regarding  the  alleged



            ineffective assistance rendered by his trial counsel were not







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            presented  to the district  court in the    2255 motion.   We



            therefore  will  not consider  them  for  the first  time  on



            appeal.   See Dziurgot  v. Luther, 897  F.2d 1222,  1224 (1st
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            Cir. 1990)  (per curiam).   Appellant's ignorance of  the law



            does not provide  an excuse for this default.   See Eagle Eye
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            Fishing Corp.  v. United  States Dep't  of Commerce, 20  F.3d
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            503, 506 (1st  Cir. 1994) ("the right  of self-representation



            is  not  a license  not  to  comply  with relevant  rules  of



            procedural and  substantive law")  (internal quotation  marks



            and citations omitted).



                      4.  In any event, appellant's failure to assert all



            but one of  his claims in his first   2255 motion is an abuse



            of the  writ under  McCleskey v. Zant,  499 U.S.  467 (1991).
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            Again, appellant's  pro se status  and ignorance  of the  law



            does  not  constitute  "cause"   sufficient  to  excuse  this



            omission.   See, e.g., Saahir  v. Collins, 956 F.2d  115, 118
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            (5th Cir.  1992) (ignorance  of the law  is not  an objective



            external  impediment); Rodriguez  v.  Maynard, 948  F.2d 684,
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            687-88  (10th Cir. 1991)  (where the factual  and legal bases



            for the new claims existed when the first habeas petition was



            filed, petitioner's  ignorance of  the legal  significance of



            those  claims does  not amount  to cause).   Nor,  obviously,



            would failure to consider these  claims on appeal amount to a



            fundamental  miscarriage of justice.  See Andiarena v. United
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            States, 967 F.2d 715, 719  (1st Cir. 1992) (per curiam) (this
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            narrow   exception  applies   only  where   a  constitutional



            violationlikely caused the conviction of an innocent person).



                      The one  claim that  appellant did  present in  the



            first    2255 motion  -- the government's  alleged sentencing



            entrapment and  counsel's alleged  ineffective assistance  in



            connection  therewith -- cannot  be raised again  because the



            district court disposed of it  on the merits in that  first



            2255  proceeding.    See Rule  9(b)  of  the  Rules Governing
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            Section 2255 Cases ("[a]  second or successive motion  may be



            dismissed if the judge finds that  it fails to allege new  or



            different  grounds for relief and the prior determination was



            on the merits").



                      5.   It  follows that  the district  court did  not



            abuse its discretion in not holding a hearing  on appellant's



            forfeiture claims.  See United States v. McGill, 11 F.3d 223,
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            225-26 (1st Cir. 1993).



                      The judgment of the district court is affirmed.
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