Druan v. United States

USCA1 Opinion

          October 7, 1993
                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 93-1092

                                   JOSEPH F. DRUAN,

                                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. Frank H. Freedman, U.S. District Judge]
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                                        Before

                               Selya, Boudin and Stahl,
                                   Circuit Judges.
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            Joseph F. Druan on brief pro se.
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            A. John  Pappalardo, United States  Attorney, and Andrew  Levchuk,
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        Assistant United States Attorney, on brief for appellee.


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                      Per Curiam.  Appellant Joseph F. Druan appeals from
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            the denial of his  petition for habeas corpus filed  under 28

            U.S.C.    2255.  After carefully reviewing the record and the

            parties' briefs, we affirm the judgment of the district court

            for essentially the reasons stated in its Order dated January

            5, 1993.  We add to that decision the following comments.

                      The district  court properly disposed of  this case

            without a hearing.  "An  evidentiary hearing is not  required

            where  the section 2255  petition, any accompanying exhibits,

            and  the record  evidence ``plainly  [reveal] .  . .  that the

            movant is not entitled to relief. . . . '"  Barrett v. United
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            States, 965  F.2d 1184,  1186 (1st  Cir. 1992)  (quoting Rule
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            4(b), Rules  Governing Section  2255 Proceedings).   That is,

            summary dismissal is appropriate where the grounds for relief

            are not cognizable under   2255 or are merely bald assertions

            without specific and particular factual allegations.  Id.  We
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            agree with the district court that the petition was deficient

            in both regards.

                      Further, Druan did not submit any valid reasons why

            he  now should be  relieved of the statements  he made in his

            change-of-plea hearing.  See  Ouellette v. United States, 862
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            F.2d 371, 374 (1st Cir. 1988).  His claims in this regard are

            based  on  facts with  which  the  district court  judge  was

            familiar  because he  had presided  at both  the Rule  11 and

            sentencing hearings.    As  such, he  was  entitled  to  make



















            findings  without  an  additional  hearing and  we  will  not

            overturn his findings  absent clear error.  See  Barrett, 965
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            F.2d  at 1186;  Panzardi-Alvarez v.  United States,  879 F.2d
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            975, 985 n.8  (1st Cir.  1989), cert. denied,  493 U.S.  1082
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            (1990).   Under this standard  of review, the  district court

            judge's findings  that Druan's guilty plea  was voluntary and

            that his counsel provided  effective assistance are more than

            adequately supported by the record.

                      As  for Druan's  attempt to  argue that his    2255

            petition  raised a  jurisdictional  issue because  no  "overt

            acts" had occurred in Massachusetts, we note only that at the

            change-of-plea hearing the government  plainly set forth  the

            fact that the videotape, made in Connecticut, was transported

            to  Massachusetts.    Druan, at  this  hearing,  specifically

            agreed with this description of the facts.

                      The judgment of the district court is affirmed.
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