December 12, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1256
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JOHN J. ZULETA-ALVAREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Cyr, Boudin and Lynch,
Circuit Judges.
John J. Zuleta-Alvarez on brief pro se.
Jay P. McCloskey, United States Attorney, and F. Mark Terison,
Assistant United States Attorney, on brief for appellee.
Per Curiam. Petitioner-appellant John J. Zuleta-
Alvarez appeals pro se from the district court's dismissal of
his second petition pursuant to 28 U.S.C. 2255 as an abuse
of the writ. Nothing in our November 3, 1992 opinion
affirming the denial of petitioner's first 2255 petition
was intended to indicate that an "abuse of the writ" defense
would be unavailable if petitioner filed a second petition.
We merely intended to alert the pro se petitioner that
although the issue he raised for the first time on appeal did
not merit relief under our narrowly circumscribed scope of
review, it could be raised in a new 2255 petition, subject
to any available defenses (including abuse of the writ).
Petitioner's reliance upon Sanders v. United
States, 373 U.S. 1 (1963), is misplaced. McCleskey v. Zant,
499 U.S. 467 (1991), established the cause and prejudice
standard that now governs in abuse of the writ cases.
Petitioner has failed to demonstrate "cause" for his failure
to raise the two issues presently before us in his first
2255 petition. We disagree that this court's decision in
United States v. O'Campo, 973 F.2d 1015 (1st Cir. 1992),
constituted new law such that the legal basis for
petitioner's present claims was not reasonably available at
the time that his first petition was filed. The O'Campo
holding relied upon a straightforward interpretation of the
language of the then-current United States Sentencing
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Guidelines and the commentary thereto. The same relevant
language was contained in the Guidelines in effect in
December 1991, when petitioner filed his first petition.
Therefore, the language of the Guidelines themselves provided
a legal basis for petitioner's present claims.
Petitioner has failed to satisfy his burden of
showing cause for failing to raise earlier the claims
contained in his second 2255 petition. Nor has he shown
that a "fundamental miscarriage of justice would result from
a failure to entertain the claim[s]." McCleskey v. Zant, 499
U.S. at 495. Therefore, we affirm the district court's order
dismissing petitioner's second petition under 28 U.S.C.
2255 as an abuse of the writ.
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