USCA1 Opinion
January 25, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
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No. 95-1186
UNITED STATES,
Appellee,
v.
MICHAEL BARNETT,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge] ___________________
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Before
Selya, Cyr and Boudin,
Circuit Judges. ______________
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Michael Barnett on brief pro se. _______________
Donald K. Stern, United States Attorney, and Michael D. Ricciuti, _______________ ___________________
Assistant United States Attorney, on brief for appellee.
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Per Curiam. Pro se defendant Michael Barnett appeals a __________ ___ __
district court order that summarily denied his motion for
relief from his sentence under 28 U.S.C. 2255. Barnett was
convicted of three offenses arising out of his participation
in a conspiracy to manufacture methamphetamine. See United ___ ______
States v. Barnett, 989 F.2d 546 (1st Cir.), cert. denied, 114 ______ _______ _____ ______
S. Ct. 148 (1993). He was sentenced to a total of thirty
years' imprisonment. Barnett's motion and supplemental
filings alleged that his sentence was the result of an
improper application of the Sentencing Guidelines. He also
claimed that his sentence violated the Double Jeopardy
Clause.
We have thoroughly reviewed the record and the parties'
briefs on appeal. We conclude that Barnett's claims are
wholly lacking in merit and that his motion was properly
denied. Briefly, neither of Barnett's claims is cognizable
under 28 U.S.C. 2255 unless Barnett shows "cause" to excuse
his procedural default and prejudice resulting from the
alleged errors, or that the failure to consider his claims
will result in a fundamental miscarriage of justice. See ___
Levasseur v. Pepe, 70 F.3d 187, 192 (1st Cir. 1995)(citing _________ ____
Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Barnett has _______ ________
failed to make either showing. Barnett's claim that he did
not possess the 50 kilogram container of pseudoephedrine as
part of the conspiracy appears to be frivolous where Barnett
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admitted that he was the "chemist" for the conspiracy and his
codefendant was recorded saying that he and his chemist had
ingredients to make 40 pounds of methamphetamine. Even if
the contention has some merit, it cannot be said to be so
obvious or strong that counsel's failure to raise the point
amounted to ineffective assistance. See Jones v. Barnes, 463 ___ _____ ______
U.S. 745, 750-54 (1983)(counsel has no duty to raise every
nonfrivolous issue requested by defendant). Barnett's Double
Jeopardy claim is also meritless. As each of his counts of
conviction required proof of an element that the others did
not, his sentence does not violate the Double Jeopardy Clause
under the familiar Blockburger test. ___________
On appeal, Barnett argues that U.S.S.G. 2D1.11 (1994)
requires that he be resentenced to a substantially lesser
term. We have considered this argument, although it was not
made below, because 2D1.11 was not retroactive when Barnett
submitted his 2255 motion. We conclude that this guideline
does not entitle Barnett to any relief from his sentence. To
the contrary, Barnett would have been subject to the same
offense level under 2D1.11, comment. n. 3. Accordingly, the
judgment of the district court is affirmed. ________
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