Rodriguez v. United States ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2322
ANGEL RODRIGUEZ,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Angel Rodriguez on brief pro se.
Donald K. Stern, United States Attorney, and Richard L. Hoffman,
Assistant United States Attorney, on brief for appellee.
December 12, 1997
Per Curiam. Appellant Angel Rodriguez appeals from
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
(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
proceeding that resulted in appellant's conviction. Compare
Department of Revenue v. Kurth Ranch, 511 U.S. 767, 784
(1994) (the collection of a tax on dangerous drugs sought in
a separate proceeding initiated subsequently to the
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
Cir. 1990) (per curiam). Appellant's ignorance of the law
does not provide an excuse for this default. See Eagle Eye
Fishing Corp. v. United States Dep't of Commerce, 20 F.3d
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).
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
(5th Cir. 1992) (ignorance of the law is not an objective
external impediment); Rodriguez v. Maynard, 948 F.2d 684,
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
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
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,
225-26 (1st Cir. 1993).
The judgment of the district court is affirmed.
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