USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2070
PETER M. CUMMING,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, 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, Cyr and Boudin,
Circuit Judges.
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Peter M. Cumming 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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August 4, 1995
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Per Curiam. Peter M. Cumming appeals pro se from
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the district court's dismissal of his motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. 2255. The
government has moved for summary disposition, and Cumming has
filed an opposition and a brief. We grant the motion and
affirm.
The present 2255 motion is Cumming's second. The
first such motion -- alleging double jeopardy and ineffective
assistance of trial and appellate counsel -- was dismissed
without prejudice because Cumming's appeal from conviction
was pending in this court. Before the direct appeal was
decided, Cumming filed this 2255 motion alleging that 18
U.S.C. 4111 was unconstitutional and had deprived him of
equal protection of the laws. Cumming also moved to amend
the second 2255 motion to assert a claim that a third
attorney involved in his case had rendered ineffective
assistance. Subsequently, Cumming's conviction and sentence
were affirmed, United States v. Cumming, No. 93-1960 (1st
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Cir. Aug. 9, 1994), and shortly thereafter the district court
adopted a magistrate-judge's recommendation that (1) the
2255 equal protection claim be dismissed because it clearly
lacked merit, and (2) the motion to amend to add another
ineffectiveness of counsel claim be denied because the first
2255 motion had been dismissed without prejudice to
Cumming's right to refile all his ineffectiveness claims
after the decision in his direct appeal.
In deciding Cumming's direct appeal, we rejected
the claim that his prosecution for unlawful importation of
controlled substances was barred by double jeopardy
principles because of Cumming's British conviction on related
charges.1 We also decided that Cumming could not claim any
violation of 18 U.S.C. 4111 because those provisions are
only applicable to offenders transferred from a foreign
country for the express purpose of completing the execution
of a foreign sentence in the United States. 18 U.S.C.
4100(a), 4101(j); United States v. Gambino, 729 F. Supp. 954,
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968 (S.D.N.Y. 1990), aff'd, 968 F.2d 227 (2d Cir. 1992).
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Cumming, slip op. at 4. It is not disputed that Cumming's
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return to the United States was voluntary, and not pursuant
to the above treaty provisions.
As an initial matter we note that Cumming's
appellate brief and answer to the government's motion make no
attempt whatsoever to articulate an argument in support of
his equal protection ground, thereby waiving it. Martinez v.
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Colon, 54 F.3d 980, 990 (1st Cir. 1995). Even if we were to
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1. In 1992, Cumming was approved for transfer to the United
States to complete the execution of his British sentence
under treaty provisions codified at 18 U.S.C. 4100-4111,
but declined the transfer. Cumming was released from British
custody in February 1993 after serving the complete foreign
sentence.
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address that claim, it is clear that Cumming's double
jeopardy premise has simply been reworked under the guise of
equal protection. That claim, at bottom, seeks relief from a
sentence which Cumming believes constitutes double punishment
for the same offenses. But, we have already resolved
Cumming's double jeopardy argument and issues disposed of on
direct appeal may not be reviewed in a subsequent 2255
proceeding absent an intervening change in the law or a
showing that manifest injustice would otherwise result. See
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Singleton v. United States, 26 F.3d 234, 240 (1st Cir.),
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cert. denied, 115 S. Ct. 517 (1994); Campbell v. Blodgett,
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982 F.2d 1321, 1326 (9th Cir. 1992) ("A petitioner may not
create a different ground merely by alleging different facts,
asserting different legal theories, or couching his argument
in different language."); see also Reed v. Farley, 114 S. Ct.
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2291, 2297 (1994). Nothing indicates that any exception to
that rule applies here.
In addition, we find no abuse of discretion by the
district court in denying the motion to amend, but decline
the government's invitation to decide the merits of Cumming's
ineffective assistance of counsel claims. This court has
generally adhered to the view that such assessments are best
made by the district judge in the first instance. Knight v.
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United States, 37 F.3d 769, 774 (1st Cir. 1994); United
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States v. Carter, 815 F.2d 827, 829 (1st Cir. 1987); United
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States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983). Since
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the district court has left the door open to Cumming to press
his ineffectiveness claims, Cumming has the option to file a
2255 motion strictly limited to those claims without being
subjected to dismissal for abuse of the writ. Cf. Rule 9(b),
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Rules Governing 2255 Proceedings (successive motions may be
dismissed).
The judgment of the district court is affirmed.
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