Hart v. United States

USCA1 Opinion









June 27, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1484

WILFRED HART,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]
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Before

Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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Stahl, Circuit Judge.
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Wilfred Hart, Junior on brief pro se.
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Jay P. McCloskey, United States Attorney, and Margaret D.
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McGaughey, Assistant United States Attorney, on Memorandum of Law in
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Support of Motion for Summary Disposition, for appellee.


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Per Curiam. On March 23, 1987, petitioner-
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appellant Wilfred Hart, Jr. was indicted in the District of

Maine on a fourteen-count third superseding indictment which

alleged a number of narcotics offenses and two conspiracies

to possess with intent to distribute cocaine. After a jury

trial, Hart was convicted on June 1, 1988. On May 16, 1991,

this court affirmed Hart's conviction on direct appeal.

United States v. Hart, 933 F.2d 80 (1st Cir. 1991).
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On April 1, 1991, while Hart's direct appeal was

pending, Hart filed a petition to vacate sentence under 28

U.S.C. 2255. He filed an amended petition on April 22,

1991. Although a magistrate judge recommended that the

petition be denied without prejudice because of the pending

appeal, the district court took no action on this

recommendation. On May 15, 1991, and, after the direct

appeal had been decided, on November 12, 1991 and December 2,

1991, Hart filed supplemental 2255 petitions. On February

12, 1992, the district court adopted a magistrate judge's

recommended decision that all of Hart's 2255 petitions be

dismissed. Hart appeals. We affirm.



Issues already resolved on direct appeal
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Of the eight issues Hart raises in his brief, five

already have been resolved by this court in the direct appeal



















from Hart's conviction: (1) ineffective assistance of counsel

in general, id. at 82-83; (2) ineffective assistance of
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counsel on the specific ground that Hart's court-appointed

trial counsel failed to produce several witnesses who

allegedly would have testified in support of Hart's

contention that the substance Hart was dealing was not

cocaine, but incense, id. at 83; (3 & 4) Hart's two similar
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arguments that there was only a single conspiracy, so his

conviction on two different conspiracy counts

unconstitutionally placed him in double jeopardy, id. at 85-
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86; and (5) Hart's argument that the district court, by

granting a motion entitled "Motion ... on Lack of

Jurisdiction for Sentencing with Federal Question," in effect

ruled that it had no jurisdiction to sentence Hart, id. at
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83-84. Absent some extraordinary circumstance not present

here, we will not reconsider by way of collateral review

arguments we have already resolved on direct appeal. United
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States v. Butt, 731 F.2d 75, 76 n.1 (1st Cir. 1984).
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Pending motions and grounds for relief
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Turning to Hart's remaining three issues, Hart alleges

that the district court was without authority to enter a

final judgment against him, and that this court is without

appellate jurisdiction, because a number of Hart's motions



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and grounds for relief remained undecided in the district

court when the district court dismissed his 2255 petitions.

The district court's order of dismissal, however,

expressly denied all of Hart's pending motions, stating,

"Hart's remaining motions are wholly without merit and

warrant summary dismissal." No motions remained pending

thereafter.

Hart points out that neither the magistrate judge nor

the district court expressly discussed each and every ground

for relief set forth in his 2255 petitions. He appears to

argue that those grounds for relief that were not mentioned

remain pending as well. In fact, however, a dismissal order

is final, and effectively dismisses the matter to which it

relates, even though the order may not mention every

particular argument or ground for relief the parties have

raised. Absent some indication from the court to the

contrary, a dismissal order is ordinarily deemed to

implicitly reject all arguments or grounds for relief not

specifically discussed. Accordingly, nothing in Hart's

2255 petitions remained pending.



Failure to follow 2255 rules
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Hart next claims that the district court erred because

it failed to follow Rule 3 of the Rules Governing 2255



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Proceedings in the United States District Courts, which

states that the clerk of the district court "shall . . .

enter [a 2255 petition] on the docket in his office in the

criminal action in which was entered the judgment to which it

is directed." According to Hart, the clerk instead assigned

Hart's original 2255 petition a separate number, and did

not enter it on the docket of Hart's prior criminal action.

We reject this claim because Hart says nothing to

suggest that this clerical error, if it occurred, prejudiced

him in any way. Thus, Hart's contentions, even if true,

provide no basis for 2255 relief.



Alleged perjury of government witnesses
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Finally, Hart alleges that the government knowingly

permitted several of its witnesses to give perjured testimony

at his trial. Hart did not raise this issue in his direct

appeal, and he has said nothing to suggest that he did not

know of the alleged perjury at the time of his direct appeal.

Hart is therefore precluded from raising the matter in a

2255 context unless he can establish cause for the procedural

default and resulting actual prejudice. Smith v. Murray, 477
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U.S. 527, 536 (1986); Velarde v. United States, 972 F.2d 826,
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827 (7th Cir. 1992); Murchu v. United States, 926 F.2d 50,
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53-54 n.4 (1st Cir.), cert. denied, 112 S.Ct. 99 (1991).
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Hart has not put forward any cause for the failure to

raise this issue on direct appeal. Although Hart has claimed

that his appellate counsel was ineffective, Hart raised a

number of issues pro se in his direct appeal, in addition to

the issues raised by counsel. Hart, supra, 933 F.2d at 82.
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In addition, Hart has not demonstrated any resulting

prejudice. Even assuming, arguendo, that the testimony was
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false, Hart has made no showing, and the record contains no

evidence to suggest, that the government may have known or

should have known of any perjury, or that the government may

have induced it in any way. Consequently, Hart could not be

entitled to a new trial based on the allegedly perjured

testimony. Velarde, supra, 972 F.2d at 829. Hart's
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allegations of perjured testimony are accordingly barred

because of Hart's procedural default.



Conclusion
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We have considered all of Hart's other arguments and

find them meritless.

The district court's denial of Hart's petitions to

vacate sentence under 28 U.S.C. 2255 is affirmed.
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