Whiting v. United States , 38 F. App'x 623 ( 2002 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2031
DARRYL WHITING,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Darryl Whiting on brief pro se.
Michael J. Sullivan, United States Attorney, and Dickens
Mathieu, Assistant U.S. Attorney, on brief for appellee.
June 21, 2002
Per Curiam. After being denied leave by this
court, in No. 00-1249, to file a second or successive
petition under 28 U.S.C. § 2255, petitioner Darryl Whiting
proceeded to submit just such a petition in district court.
Much as he had done in this court, Whiting there disputed
the applicability of AEDPA to his case. Understandably, the
lower court summarily dismissed that action in light of our
March 23, 2000 ruling, and this appeal ensued. Whiting has
provided nothing to call our earlier rationale into
question. Accordingly, the judgment of dismissal is
summarily affirmed.1
Whiting also sought to amend his petition below to
advance a claim that the government had suborned perjury at
trial. The district court properly concluded that leave of
this court was needed to pursue the matter. Construing
1
We pause simply to note that Whiting's two new
assertions--that a conviction for aiding and abetting a drug
offense cannot constitute a CCE predicate, and that a jury must
unanimously agree upon the applicable prong of the aiding and
abetting statute--are both in error. See, e.g., United States
v. Escobar-De Jesus, 187 F.3d 148, 157 n.1, 160 n.6 (1st Cir.
1999) (as to the former), cert. denied, 528 U.S. 1176 (2000);
United States v. Rivera-Martinez, 931 F.2d 148, 153-54 (1st Cir.
1991) (same); United States v. Kim, 196 F.3d 1079, 1082-83 (9th
Cir. 1999) (as to the latter).
-2-
Whiting's notice of appeal as an application therefor, we
deny such leave. In a March 20, 2000 ruling, we rejected a
similar request made by four of Whiting's codefendants. See
Carmichael v. United States, No. 99-1897 (1st Cir. 2000).
The new evidence on which Whiting relies, even if deemed
timely proffered, is too generalized to warrant a different
outcome. The suggestion that he need not demonstrate how
the alleged perjury might have affected the outcome of his
trial is misplaced. See, e.g., Kyles v. Whitley, 514 U.S.
419, 433 n.7 (1995); United States v. Agurs, 427 U.S. 97,
103 (1976).
The judgment is affirmed. Leave to file a second
or successive petition under 28 U.S.C. § 2255 is denied.
-3-