UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 97-1398
SHMUEL DAVID,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Peter Goldberger, with whom Pamela A. Wilk was on brief, for
appellant.
Robert L. Peabody, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief, for
appellee.
January 27, 1998
SELYA, Circuit Judge. Some four years ago, petitioner-
SELYA, Circuit Judge.
appellant Shmuel David filed a motion for post-conviction relief
pursuant to 28 U.S.C. 2255 (1994).1 The district court
eventually denied the petition without holding an evidentiary
hearing. David appeals. We affirm.
I.
I.
Background
Background
On direct appeal, we described the petitioner's case as
"involv[ing] a spider web of drug dealing, with David at the
web's center," United States v. David, 940 F.2d 722, 726 (1st
Cir. 1991) (David I), and we proceeded to affirm his convictions
on a myriad of charges. Inasmuch as the predicate facts are set
out at length in that opinion, we offer only a pr cis of those
events to set the stage for the instant appeal.
In David I, the government charged that, during 1986,
1987, and 1988, David, thirteen codefendants, and various other
persons engaged in extensive cocaine trafficking. Mirroring the
prosecution's theory that a shift from domestic to foreign
suppliers transmogrified the operation, the indictment described
1Congress subsequently enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (codified in scattered sections of 28 U.S.C.).
The new law took effect on April 24, 1996. The Supreme Court has
determined, in general, that AEDPA does not apply to habeas
petitions that were pending on AEDPA's effective date. See Lindh
v. Murphy, 117 S. Ct. 2059, 2067-68 (1997) (discussing amendments
to habeas procedures in cases brought under 28 U.S.C. 2254);
see also Martin v. Bissonette, 118 F.3d 871, 874 (1st Cir. 1997)
(applying Lindh). We believe that this rationale applies to
section 2255 motions (which are, after all, a species of habeas
petitions). Thus, we measure the petitioner's case against pre-
AEDPA benchmarks.
2
two conspiracies: one beginning in 1986 and ending in March of
1988, and the other taking up where the first left off and ending
later that year. Following a nine-week trial, a jury found the
petitioner guilty on twenty-two counts, including charges that
he: (a) engaged in a continuing criminal enterprise (CCE), see
21 U.S.C. 848; (b) participated in both conspiracies, see 21
U.S.C. 846; (c) possessed cocaine with intent to distribute on
several occasions, see 21 U.S.C. 841(a)(1); and (d) facilitated
numerous drug transactions by using the telephone, see 21 U.S.C.
843(b).
At the disposition hearing, the district court,
employing the January 1988 edition of the sentencing guidelines,
grouped related offenses, see USSG 3D1.1(a); used available
drug-quantity evidence to fix a base offense level of 36, see
USSG 2D1.1; added two levels for possession of a firearm during
the commission of an offense, see USSG 2D1.1(b); added four more
levels for the petitioner's leadership role, see USSG 3B1.1; and
subtracted two levels for acceptance of responsibility, see USSG
3E1.1. In the end, the district court sentenced the petitioner
within the computed guideline sentencing range, imposing a
thirty-year incarcerative term on the CCE and various "grouped"
possession counts and shorter periods of immurement on the
remaining charges. The court designated all the sentences to run
concurrently.
Represented by new counsel, David appealed. We vacated
the conspiracy convictions as violative of the multiple
3
punishments prong of the Double Jeopardy Clause, given the
conviction and sentence on the encompassing CCE count. See David
I, 940 F.2d at 738 (citing United States v. Rivera-Martinez, 931
F.2d 148, 152-53 (1st Cir. 1991)). In all other respects, we
affirmed the convictions and the corresponding sentences.
On January 7, 1994, while still incarcerated, the
petitioner retained fresh counsel and filed a motion for post-
conviction relief in the district court. Judge Gertner assumed
responsibility for the motion in place of the late Judge
McNaught, who had presided over the trial and had imposed
sentence. She ultimately denied it on January 2, 1997, but did
not deign to hold an evidentiary hearing. Without missing a
beat, the petitioner changed counsel again. His new lawyers
filed a motion for reconsideration on February 26, 1997, which
Judge Gertner also denied. The petitioner appeals solely from
the original denial of post-conviction relief.
II.
II.
Analysis
Analysis
The petitioner advanced three claims in the court
below. Two of these claims related to the propriety of the
sentencing calculations; one questioned the firearms enhancement
and the second questioned the upward adjustment for role in the
offense. The remaining claim posited ineffective assistance of
trial counsel, stemming not only from an alleged failure to raise
this pair of sentencing objections, but also from an alleged
failure promptly to relay a potentially favorable plea bargain to
4
the petitioner. On appeal, David has not continued his campaign
against the role-in-the-offense adjustment, and we deem that
challenge abandoned. See, e.g., United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990). He does, however, renew the other
two claims. After a brief introduction, we address each of them.
A.
A.
Introduction
Introduction
Section 2255 is not a surrogate for a direct appeal.
Rather, the statute provides for post-conviction relief in four
instances, namely, if the petitioner's sentence (1) was imposed
in violation of the Constitution, or (2) was imposed by a court
that lacked jurisdiction, or (3) exceeded the statutory maximum,
or (4) was otherwise subject to collateral attack. See Hill v.
United States, 368 U.S. 424, 426-27 (1962) (construing statute).
The catch-all fourth category includes only assignments of error
that reveal "fundamental defect[s]" which, if uncorrected, will
"result[] in a complete miscarriage of justice," or
irregularities that are "inconsistent with the rudimentary
demands of fair procedure." Id. at 428. In other words, apart
from claims of constitutional or jurisdictional nature, a
cognizable section 2255 claim must reveal "exceptional
circumstances" that make the need for redress evident. See id.
The burden is on the petitioner to make out a case for section
2255 relief. See Mack v. United States, 635 F.2d 20, 26-27 (1st
Cir. 1980).
B.
B.
5
The Firearms Enhancement
The Firearms Enhancement
The petitioner asserts that, as of the date of
disposition (August 1, 1989), the guidelines did not authorize
the two-level sentence enhancement imposed by Judge McNaught for
the use of a firearm an enhancement that tacked at least sixty-
seven additional months onto David's sentence. This claim
presents a bit of a moving target. In his section 2255 motion
and in the court below, David asseverated that a two-level
increase only could have materialized if it were authorized for
the CCE conviction, and that the two-level firearms enhancement
was unavailable because the applicable sentencing guideline, USSG
2D1.5, did not make reference to it.
Having secured yet a fourth set of attorneys in the
interim, the petitioner recast his argument in his motion for
reconsideration, and now has come hard about. In this venue, he
barely mentions section 2D1.5, but, rather, shapes his argument
around USSG 2D1.1. Paying very little heed to the fact that he
initially told the lower court that section 2D1.1 did not apply
at all, he now maintains that section 2D1.1 is the correct focal
point, but that it cannot support the enhancement.
We approach this moving target with considerable
caution. It is well established that a party may not unveil an
argument in the court of appeals that he did not seasonably raise
in the district court. See United States v. Slade, 980 F.2d 27,
30 (1st Cir. 1992); see also Singleton v. United States, 26 F.3d
233, 240 (1st Cir. 1994) (invoking this principle in a section
6
2255 case); United States v. Mariano, 983 F.2d 1150, 1158 n.9
(1st Cir. 1993) (invoking this principle in respect to sentencing
issues).
To apply the principle here, we must measure the
petitioner's current argument against that limned in his section
2255 motion and advanced before Judge Gertner, not by reference
to the theory that he belatedly surfaced in his request for
reconsideration.2 See Barrett v. United States, 965 F.2d 1184,
1187 n.3 (1st Cir. 1992); Mackin v. City of Boston, 969 F.2d
1273, 1278-79 (1st Cir. 1992); In re Sun Pipe Line Co., 831 F.2d
22, 24 (1st Cir. 1987). Although the petitioner contends that
the argument he makes today is merely a more sophisticated
statement of a refrain contained in his section 2255 motion, that
is plainly not the case. The two arguments are markedly
different. Consequently, the newer version is by the boards.
The petitioner correctly reminds us that an appellate
court has discretionary power to override a forfeiture of this
type. To justify deploying this seldom-used power, however, the
newly emergent contention must be one that practically guarantees
the appellant's success. See Slade, 980 F.2d at 31. Here, the
forfeited argument is considerably less than robust. We explain
briefly.
The firearms enhancement about which the petitioner
2Even were we disposed to consider the argument advanced in
the petitioner's untimely motion for reconsideration, we could
not do so because the petitioner has not appealed from the denial
of that motion. See Barrett v. United States, 965 F.2d 1184,
1188 (1st Cir. 1992).
7
complains arose out of a discrete set of facts. In June 1987, a
drug courier by the name of Filin, employed by David and his
confederates, tried to purloin a shipment of cocaine by faking a
robbery. The petitioner saw through the charade and later
threatened Filin at gunpoint in an attempt to coerce a
confession.
Under the sentencing regime imposed by the guidelines,
the law in effect on the date of the disposition hearing governs,
absent ex post facto concerns. See United States v. Harotunian,
920 F.2d 1040, 1041-42 (1st Cir. 1990). Hewing to this line, the
government defends the enhancement by pointing to the version of
USSG 2D1.1(b)(1) that took effect on January 15, 1988. That
guideline provided for a two-level upward adjustment if a firearm
"was possessed during commission of the offense." USSG
2D1.1(b)(1). The government concedes that "the offense" must be
an offense to which the guidelines attached, thus restricting the
enhancement in this case to the two drug distribution counts that
transpired in 1988, namely, counts 15 and 16.3 Notwithstanding
this concession, the government posits that the phrase "during
commission of the offense" requires reference to the "relevant
conduct" guideline, which in its 1988 iteration indicated (with
certain exceptions not germane here) that an "offense" generally
3These counts, each of which charged a violation of 21
U.S.C. 841(a)(1), are the only post-guidelines counts of
conviction that are legally capable of supporting the firearms
enhancement. The CCE sentencing paradigm did not provide for
such an enhancement, and the two conspiracy convictions have been
vacated.
8
is deemed to include "all acts . . . committed or aided and
abetted by the defendant . . . that occurred during the
commission of the offense of conviction," USSG 1B1.3(a)(1), and
that, with respect to "grouped" offenses, see USSG 3D1.2(d), an
"offense" generally is deemed to include all "acts and omissions
that were part of the same course of conduct or common scheme or
plan as the offense of conviction," USSG 1B1.3(a)(2). Since the
Filin episode was part of the same course of conduct or common
scheme or plan as the vignettes on which counts 15 and 16 were
premised, the government's thesis runs, the petitioner possessed
the gun "during commission of the offense."
The petitioner's counter-argument is somewhat more
convoluted. As a general matter, he maintains that the
government defines "the offense" too broadly and that the
phrase's scope is restricted to the specific offense(s) of
conviction and does not include "relevant conduct." On this
basis, he argues, his proven use of a firearm could not support
the enhancement because that use did not occur in the course of
an offense of conviction to which the guidelines attached.
Indeed, he adds, since the gun use took place before the
effective date of the guidelines, it could not possibly have
occurred as part of such an offense.
After studying the guideline provision, we reject the
petitioner's hypothesis. We conclude instead that the phrase
"the offense," fairly read, bears the broader interpretation
ascribed to it by the government and the district court. Our
9
conclusion is grounded in the language, structure, and theory of
the sentencing guidelines, and it is reinforced by an amendment
that the Sentencing Commission adopted subsequent to the events
at issue here. See USSG App. C, Amend. 394 (Nov. 1991). That
amendment deleted the "during commission of the offense" language
from section 2D1.1(b)(1) and thus confirmed the government's
interpretation of the guideline as extending to relevant conduct.
We do not embrace the petitioner's suggestion that
Amendment 394 is inapposite. The general rule is that
revisionary amendments to the guidelines that is, amendments
which change the law in a substantive way cannot be applied
retroactively by a sentencing court to a defendant's
disadvantage. See United States v. Rostoff, 53 F.3d 398, 406
(1st Cir. 1995). By contrast, clarifying amendments that is,
amendments which do not change the law, but which merely
elucidate its intended meaning can be freely used by sentencing
(or sentence-reviewing) courts as interpretive aids,
prospectively or retrospectively. See Isabel v. United States,
980 F.2d 60, 62 (1st Cir. 1992); United States v. Ruiz-Batista,
956 F.2d 351, 353-54 (1st Cir. 1992). When determining whether a
guideline amendment is revisionary as opposed to clarifying, an
inquiring court must accord substantial respect to the Sentencing
Commission's view on the subject. See Isabel, 980 F.2d at 62.
In effecting Amendment 394, the Sentencing Commission stated that
"[t]his amendment clarifies that the provisions of 1B1.3(a)(2)
[incorporating as relevant conduct all acts which were part of
10
the same course of conduct as the offense of conviction] apply to
the adjustments in 2D1.1(b)(1)." The Commission's
characterization of Amendment 394 appears apt: it is designed to
disambiguate the guideline provision and thereby mitigate any
confusion caused by the original wording.
That is game, set, and match. Because Amendment 394
worked no substantive change in preexistent law, a sentencing or
reviewing court may apply it retroactively. See United States v.
LaCroix, 28 F.3d 223, 227 n.4 (1st Cir. 1994); United States v.
Valencia-Lucena, 988 F.2d 228, 234 n.4 (1st Cir. 1993); see also
USSG 1B1.11(b)(2) (Nov. 1993). We do so here.
The Commission's language could not be more
straightforward. Amendment 394 makes it plain that the "relevant
conduct" provisions (such as section 1B1.3(a)(2)) apply to the
adjustments in section 2D1.1(b)(1) (such as the firearms
enhancement). Accordingly, Amendment 394 fully validates the
district court's use of a "relevant conduct" approach to the
firearms enhancement.
The petitioner's fallback position is no more
persuasive. He contends that, even if the sentencing guidelines
permit the enhancement when a firearm was used during pre-
guidelines conduct "relevant" to a post-guidelines offense of
conviction, his gun use does not so qualify because the Filin
incident (which took place in 1987) was not part of the same
course of conduct, common scheme, or plan that underlays counts
15 and 16 (both of which focus on events that occurred in April
11
of 1988).
This contention depends on an artificial distinction.
The petitioner notes that his use of a firearm occurred within
the time frame of the so-called first conspiracy, whereas the
conduct underlying the two post-guidelines drug distribution
counts occurred within the time frame of the so-called second
conspiracy. Based on this chronology, he theorizes that the
enhancing conduct the gun use cannot be "relevant" to the
offenses of conviction.
The fallacy in this theory is that "a course of conduct
or common scheme or plan," as that phrase is used in the
sentencing guidelines, is broader than, rather than coterminous
with, the definition of a "conspiracy" as that term of art is
used in the overall criminal law. See United States v. Wood, 924
F.2d 399, 403 (1st Cir. 1991); see also United States v. Spence,
125 F.3d 1192, 1195 (8th Cir. 1997); United States v. Boney, 977
F.2d 624, 635 (D.C. Cir. 1992). Thus, whether or not enveloped
within the same conspiracy, offenses may qualify as occurring
within the same course of conduct as long as they are related
sufficiently to allow a rational factfinder to conclude that
"they are part of . . . [an] ongoing series of offenses." USSG
1B1.3(a), comment. (n.9(B)). In the same vein, "[f]or two or
more offenses to constitute part of a common scheme or plan,"
they only need to "be substantially connected to each other by at
least one common factor, such as . . . accomplices, [or] common
purpose. . . ." USSG 1B1.3(a), comment. (n. 9(A)).
12
This dichotomy makes a world of difference. Although
the petitioner's drug trafficking resulted in two separate
charged conspiracies, the framing of the charges cannot obscure
the fact that, throughout the cocaine trafficking described in
the indictment, the petitioner and his principal accomplices
remained at the center of an ongoing enterprise devoted to a
single purpose.4 The shift in the source of supply permitted the
prosecutor to divide the enterprise into two segments and to
charge some defendants accordingly, but the petitioner never
deviated from his main business: the acquisition, distribution,
and sale of cocaine in a specific region. Because the
petitioner's activities during 1986, 1987, and 1988 constituted
an ongoing series of offenses, the district court did not err in
imposing the firearms enhancement.
C.
C.
Ineffective Assistance of Counsel
Ineffective Assistance of Counsel
Insofar as the petitioner's ineffective assistance of
counsel claim relates to the sentencing phase, it is impuissant.
The petitioner received an appropriate sentence, see supra Part
II(B), and, absent any prejudice, an ineffective assistance claim
cannot prosper. See Scarpa v. Dubois, 38 F.3d 1, 8-9 (1st Cir.
1994). We turn, then, to a consideration of the remaining tine
of the petitioner's claim: that he received substandard
assistance because his trial counsel failed promptly to
4The David I record discloses that at least three other
ringleaders (Yehuda Yarden, Joseph Zalmanovich, and Mordechai
Mizrahi) were involved with the petitioner in both conspiracies.
13
communicate a favorable plea bargain to him.
The genesis of this claim is as follows. In his motion
(or, more accurately, in a memorandum accompanying it), the
petitioner averred that he learned at some indeterminate time of
a favorable plea offer extended by the government but not
communicated to him until after its withdrawal. Had the offer
been made known to him, the petitioner ruminates, he "likely"
would have accepted it. The averment contains no specifics,
e.g., who made the proposal, when it was tendered, what
conditions were attached to it, why it was withdrawn, or how the
petitioner came to hear of it.5
Judge Gertner dismissed the unsupported allegation out
of hand. On appeal, the petitioner argues only that the judge
erred in brushing aside the allegation without a hearing. We
review the district court's denial of an evidentiary hearing for
abuse of discretion. See United States v. Garcia, 954 F.2d 12,
19 (1st Cir. 1992).
A prisoner who invokes section 2255 is not entitled to
an evidentiary hearing as a matter of right. See United States
v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). Even if a hearing
is requested, a district court properly may forgo it when (1) the
motion is inadequate on its face, or (2) the movant's
5In his papers, the petitioner merely asserted that he
"later learned that during pre-trial period the Government made a
plea offer . . . in return for a sentence of 19 years and 6
months. Counsel failed to adequately communicate this offer . .
. until the offer had been withdrawn. [I]n all likelihood . . .
[he] would have accepted said plea offer."
14
allegations, even if true, do not entitle him to relief, or (3)
the movant's allegations "need not be accepted as true because
they state conclusions instead of facts, contradict the record,
or are `inherently incredible.'" Id. at 225-26 (citation
omitted); see also Rule 4(b), Rules Governing Section 2255
Proceedings.
To progress to an evidentiary hearing, a habeas
petitioner must do more than proffer gauzy generalities or drop
self-serving hints that a constitutional violation lurks in the
wings. A representative case is Machibroda v. United States, 368
U.S. 487 (1962), in which the petitioner's section 2255 motion
alleged that his guilty plea resulted from an unkept
prosecutorial promise. After the trial court dismissed the
motion without an evidentiary hearing and the court of appeals
affirmed, the Supreme Court reversed, noting that "[t]he
petitioner's motion and affidavit contain charges which are
detailed and specific." Id. at 495. In a pithy passage that
possesses particular pertinence for present purposes, the Court
cautioned that a habeas petitioner is not automatically entitled
to a hearing and normally should not receive one if his
allegations are "vague, conclusory, or palpably incredible." Id.
This is true, the Court wrote, even "if the record does not
conclusively and expressly belie [the] claim." Id.
Inferior courts routinely have applied the Machibroda
standard in determining the need for evidentiary hearings on
section 2255 motions. Allegations that are so evanescent or
15
bereft of detail that they cannot reasonably be investigated
(and, thus, corroborated or disproved) do not warrant an
evidentiary hearing. See Dalli v. United States, 491 F.2d 758,
761 (2d Cir. 1974) (holding that the district court supportably
refused to convene an evidentiary hearing when the petitioner's
allegations were "vague, indefinite and conclusory"); see also
Amos v. Minnesota, 849 F.2d 1070, 1072 (8th Cir. 1988) (upholding
the denial of an evidentiary hearing in a section 2254 case
inasmuch as petitioner "offered only general allegations").
In this instance, the district court was not obliged to
credit the petitioner's threadbare allusions to a phantom plea
bargain. Who, what, when, where, and how details might have
placed matters of ascertainable fact at issue and thus have
bolstered the case for an evidentiary hearing, but none were
forthcoming. To the contrary, the petitioner offered the
district court no names, dates, places, or other details, even
though such details presumably were within his ken. In the
absence of any particulars, the lower court justifiably treated
the petitioner's conclusory averments as mere buzznacking.
The petitioner points to United States v. Rodriguez
Rodriguez, 929 F.2d 747 (1st Cir. 1991) (per curiam), as support
for his contention that, when a section 2255 motion alleges that
defense counsel failed to inform the defendant of a plea offer,
the district court must hold an evidentiary hearing. That case
provides David with cold comfort, for the court there took pains
to admonish petitioners that, in order to secure an evidentiary
16
hearing on such a claim, they must tender more than conclusory
allegations. See id. at 752. Rodriguez, unlike David, "provided
adequate factual specifications beyond bald speculation," and
therefore merited an evidentiary hearing. Id.
To sum up, the petitioner has put forth less than the
bare minimum that is necessary to warrant an evidentiary hearing.
On this gossamer showing, the district court did not abuse its
discretion in refusing to license a fishing expedition.
III.
III.
Conclusion
Conclusion
We need go no further. The petitioner's sentencing
arguments are procedurally defective and substantively infirm.
By like token, his unparticularized claim that a phantom plea
bargain lapsed for want of timely communication is much too vague
to demand an evidentiary hearing. Hence, the court below did not
err in rejecting David's section 2255 motion.
Affirmed.
Affirmed.
17