United States v. Seeley

USCA1 Opinion

          September 23, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-1231 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  EDWARD W. SEELEY,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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            Edward W. Seeley on brief pro se.
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            A. John Pappalardo,  United States  Attorney, and Brian T.  Kelly,
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        Assistant United States Attorney, on brief for appellee.


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                      Per Curiam.      Appellant challenges  the district
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            court's  disposition of his motion under 28 U.S.C.   2255 and

            former Rule  35(a), Federal  Rules of Criminal  Procedure, to

            correct, modify or clarify his sentence.  The district  court

            vacated appellant's  conviction on two counts  which it found

            to be impermissibly repetitious of the remaining convictions,

            but  left unchanged  the  total punishment  time.   Appellant

            complains that  "more  is owed  to  [him] than  the  symbolic

            emptiness   provided."    We   affirm  the  district  judge's

            disposition for  substantially the same reasons  as set forth

            in her opinion.  

                      In  his  notice  of appeal,  appellant  assigned as

            error the district court's reliance on Judge Keeton's opinion

            in United  States v. MacPherson,  CR 87-34-K (May  10, 1991),
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            aff'd,  959  F.2d  230   (1st  Cir.  1992)  (table),  calling
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            MacPherson  an "obscure . .  . unpublished case not available
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            to  the public."    There  was  no  error  in  the  citation.

            MacPherson  involved one  of appellant's  codefendants, tried
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            separately but charged in the same indictment.  The issues in

            Judge Keeton's  opinion were directly related  to those here.

            See Loc.  R. 36.2(b)6 (stipulating that  unpublished opinions
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            may be cited in related cases).  Moreover, the argument calls

            into  question appellant's  good  faith.   In his  memorandum

            below, appellant appended a  copy of the MacPherson decision,
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            and urged the district court to follow its reasoning.



















                      Appellant also attempts  on this  appeal to  attack

            his conviction  and sentence on two  new grounds.   We do not

            consider issues raised for the first time on appeal, unless a

            gross miscarriage of justice would otherwise occur or the new

            ground is  so compelling as "virtually  to assure appellant's

            success."   Hernandez-Hernandez  v. United  States, 904  F.2d
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            758, 763 (1st Cir. 1990).  

                      Appellant's new arguments fall well outside of this

            narrow exception.  First, he challenges as unreliable hearsay

            certain testimony at his  trial.  We previously  rejected the

            very  same  challenge  on  direct appeal,  United  States  v.
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            Seeley, 892  F.2d 1, 3-4 (1st  Cir. 1989), so it  will not be
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            reviewed again on a   2255 motion.  Barrett v. United States,
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            965 F.2d 1184, 1190 (1st Cir. 1992).  

                      Second, appellant argues  that the trial judge  was

            biased,  leading   her   to  impose   a   sentence   "grossly

            disproportionate"   to  the   sentencing  guidelines.     The

            guidelines  were not  in  effect on  the  date appellant  was

            sentenced and we have held squarely that, in a pre-guidelines

            case, the sentencing judge has plenary authority to treat the

            guidelines as  extraneous surplusage.   See United  States v.
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            Twomey, 845 F.2d 1132, 1134-35 (1st  Cir. 1988).  He cites no
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            probative evidence for  the claim of bias,  but uses snippets

            of public information to conjure up a personal profile of the

            judge that is as irrelevant as  it is unfounded.  See Blizard
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            v. Frechette, 601 F.2d 1217, 1221 (1st Cir. 1979) (there must
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            be some reasonable factual basis to doubt the impartiality of

            the tribunal).  

                      For  the  reasons  stated  the  judgment  below  is

            affirmed.
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