Faulhaber v. United States

USCA1 Opinion









September 25, 1995 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_________________________

No. 95-1427

THOMAS A. FAULHABER,

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. Mark L. Wolf, U.S. District Judge] ___________________

__________________________

Before

Selya and Stahl, Circuit Judges, ______________

and Gorton,* District Judge. ______________

__________________________

Cheryl J. Strum on brief for appellant. _______________
David J. Apfel, Assistant United States Attorney, and _______________
Donald K. Stern, United States Attorney, on brief for appellee. _______________

__________________________



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*Of the District of Massachusetts, sitting by designation.

















Per Curiam. We summarily affirm the dismissal of the Per Curiam. __________

petition brought by Thomas A. Faulhaber pursuant to 28 U.S.C.

2255 (1994) for essentially the reasons set forth in the

thoughtful report of the magistrate judge, dated November 4,

1994, thereafter adopted by the district court on de novo review.

We pause only to emphasize a few points.

First, the rule is clear that claims raised and

rejected on direct appeal may not be resurrected on collateral

review under the aegis of a section 2255 petition. See Barrett ___ _______

v. United States, 965 F.2d 1184, 1190 n.11 (1st Cir. 1992); ______________

Murchu v. United States, 926 F.2d 50, 55 (1st Cir. 1991), cert. ______ _____________ _____

denied, 502 U.S. 828 (1991); Dirring v. United States, 370 F.2d ______ _______ _____________

862, 864 (1st Cir. 1967), cert. denied, 377 U.S. 1003 (1964). _____ ______

The petitioner ignores this rule, rehashing several arguments

that this court previously rejected as unavailing. See United ___ ______

States v. Faulhaber, 929 F.2d 16 (1st Cir. 1991). ______ _________

Second, the petitioner's claim that he did not receive

constitutionally effective assistance from the attorneys who

handled his trial and his direct appeal is bootless. The record

bears witness that petitioner's trial counsel provided him with a

stellar defense, and that his direct appeal was handled in a

thoroughly professional manner. In no way can the alleged errors

in failing to object when the financial instruments upon which

the criminal charges were based were termed "checks" rather than

"drafts" be said to have affected the outcome of his trial or to

have lengthened his sentence.


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To say more would be to paint the lily. On the face of

the petition, dismissed as meritless by the very judge who

presided over Faulhaber's original trial, Faulhaber can satisfy

neither the performance nor prejudice prong of the test for

ineffective assistance. See, e.g., Scarpa v. Dubois, 38 F.3d 1, ___ ____ ______ ______

8-9 (1st Cir. 1994) (setting forth applicable constitutional

standard), cert. denied, 115 S.Ct. 940 (1995). _____ ______

Petitioner also alleges, as before, that the government

failed to produce exculpatory evidence in violation of its

obligations under Brady v. Maryland, 373 U.S. 83 (1963). During _____ ________

pretrial discovery the prosecution gave petitioner the benefit of

open access to all its files. We agree with the government (and

with the magistrate) that the "undiscovered" deposit slips to

which petitioner now alludes either are imagined or, to the

extent they exist, would most probably have reinforced the

prosecution's case if submitted into evidence. At any rate, we

rejected a version of this claim on direct appeal as impuissant,

and Faulhaber is foreclosed from raising it again by means of a

section 2255 petition. And, moreover, the passage of time has

not increased the potency of the asseveration.

It follows inexorably that the district court did not

abuse its discretion in denying petitioner an evidentiary hearing

on the Brady claims. See United States v. McGill, 11 F.3d 223, _____ ___ _____________ ______

225-26 (1st Cir. 1993); United States v. Burrows, 872 F.2d 915, _____________ _______

917 (9th Cir. 1989); Baumann v. United States, 692 F.2d 565, 572- _______ _____________

73 (9th Cir. 1982); cf. United States v. Panitz, 907 F.2d 1267, ___ _____________ ______


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1273-74 (1st Cir. 1990).

We need go no further. Although hope springs eternal,

points fully considered and properly rebuffed cannot rewardingly

be relitigated in perpetuity. Since this appeal flies in the

teeth of that truism, and presents no fairly debatable issue of

fact or law, the judgment of the district court must be summarily

affirmed. See 1st Cir. R. 27.1. ___



Affirmed. Affirmed. ________




































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