June 8, 1992 ____________________
June 8, 1992 ____________________
No. 91-1568
No. 91-1568
JAMES BARRETT,
JAMES BARRETT,
Petitioner, Appellant,
Petitioner, Appellant,
v.
v.
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Respondent, Appellee.
Respondent, Appellee.
____________________
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
[Hon. Gene Carter, U.S. District Judge]
___________________
____________________
____________________
Before
Before
Torruella, Circuit Judge,
Torruella, Circuit Judge,
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Bownes, Senior Circuit Judge,
Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
and Cyr, Circuit Judge.
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____________________
____________________
Kenneth J. King with whom Fenn & King was on brief for appellant.
Kenneth J. King with whom Fenn & King was on brief for appellant.
_______________ ___________
Margaret D. McGaughey, Assistant United States Attorney, with
Margaret D. McGaughey, Assistant United States Attorney, with
______________________
whom Richard S. Cohen, United States Attorney, was on brief for
whom Richard S. Cohen, United States Attorney, was on brief for
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appellee.
appellee.
____________________
____________________
____________________
____________________
CYR, Circuit Judge. James W. Barrett [hereinafter "petitioner"]
CYR, Circuit Judge.
_____________
appeals the dismissal of a motion to vacate or set aside his convic-
tion and sentence for an armed bank robbery which occurred in Port-
land, Maine, in 1975. Petitioner asserts four grounds for relief:
(1) a Jencks Act claim, see 18 U.S.C. 3500; (2) a Brady claim, see
___ _____ ___
Brady v. Maryland, 373 U.S. 83 (1963); (3) a Sixth Amendment ineffec-
_____ ________
tive assistance claim; and (4) an alleged entitlement to a new trial
based on newly discovered evidence. We affirm the district court
judgment.
I
I
BACKGROUND
BACKGROUND
__________
Three armed men wearing ski masks robbed the Lunts Corner Branch
of the Northeast Bank in Portland, Maine, on October 4, 1975, and made
their getaway. At trial, some nine years later, petitioner denied any
involvement in the robbery. The chief prosecution witness, Joseph
Aceto, testified that he and the petitioner entered the bank with
codefendant Raymond Levasseur, while a fourth individual, codefendant
Thomas Manning, waited in the getaway car. At the time of petitione-
r's trial, Levasseur and Manning were fugitives. The trial "ultimate-
ly turned on the relative credibility of Aceto and [petitioner],"
United States v. Barrett, 766 F.2d 609, 612 (1st Cir.), cert. denied,
_____________ _______ ____ ______
474 U.S.
2
923 (1985), which is the principal focus of the present appeal as
well.*
II
II
DISCUSSION
DISCUSSION
__________
Petitioner challenges the dismissal of the section 2255 petition
without an evidentiary hearing. Petitioner was required to demon-
strate to the district court, by a preponderance of the evidence, not
only an entitlement to section 2255 relief but entitlement to an
evidentiary hearing. Myatt v. United States, 875 F.2d 8, 11 (1st Cir.
_____ _____________
1989); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir.), cert.
_____________ _______ _____
denied, 439 U.S. 834 (1978). An evidentiary hearing is not required
______
where the section 2255 petition, any accompanying exhibits, and the
record evidence "plainly [reveal] . . . that the movant is not enti-
tled to relief . . . ." Rule 4(b), Rules Governing Section 2255
Proceedings. See Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.
___ ________ ______
1990). As we have explained on previous occasions, summary dismissal
is appropriate when the section 2255 petition "'(1) is inadequate on
its face, or (2) although facially adequate, is conclusively refuted
as to the alleged facts by the files and records of the case.'"
DiCarlo, 575 F.2d at 954 (quoting Moran v. Hogan, 494 F.2d 1220, 1222
_______ _____ _____
____________________
*The district court denied petitioner's postjudgment motions. See
*The district court denied petitioner's postjudgment motions. See
___
United States v. Barrett, 598 F. Supp. 469 (D. Me. 1984). The convic-
United States v. Barrett, 598 F. Supp. 469 (D. Me. 1984). The convic-
_____________ _______
tion was affirmed on direct appeal. See United States v. Barrett, 766
tion was affirmed on direct appeal. See United States v. Barrett, 766
___ _____________ _______
F.2d 609 (1st Cir.), cert. denied, 474 U.S. 923 (1985). The district
F.2d 609 (1st Cir.), cert. denied, 474 U.S. 923 (1985). The district
____ ______
court opinion dismissing the instant 2255 motion is reported as
court opinion dismissing the instant 2255 motion is reported as
well. See Barrett v. United States, 763 F. Supp. 658 (D. Me. 1991).
well. See Barrett v. United States, 763 F. Supp. 658 (D. Me. 1991).
___ _______ _____________
3
(1st Cir. 1974)). Thus, the petition is subject to dismissal, without
an evidentiary hearing, if the grounds for relief either are not
cognizable under section 2255 or amount to mere "bald" assertions
without sufficiently particular and supportive allegations of fact.
Moran, 494 F.2d at 1222. Alternatively, even a section 2255 petition
_____
predicated on specific assertions of fact allegedly supported in the
_________
record may be dismissed summarily by the district court since "only
[the] district court know[s] definitely, without a hearing, whether
the petitioner's facially adequate supporting allegations are in fact
untrue," id. at 1222 n.1, and "the district court can often 'test' the
___
adequacy of accompanying factual allegations by assuming arguendo
________
their truth, and then assessing their sufficiency in light of the
relevant constitutional standards and the record," id. at 1222. As we
___
have observed, "if [petitioner's] claim is based upon facts with which
the trial court, through review of the record or observation at trial,
is familiar, the court may make findings without an additional hear-
ing, and, as is the case for findings of the trial court generally,
those findings will not be overturned unless they are clearly erron-
eous." Panzardi-Alvarez v. United States, 879 F.2d 975, 985 n.8 (1st
________________ _____________
Cir. 1989) (quoting DiCarlo, 575 F.2d at 954-55), cert. denied, 493
_______ ____ ______
U.S. 1082 (1990).
1. Jencks Act Claim
1. Jencks Act Claim
________________
On June 11, 1990, petitioner filed a pro se motion to vacate, set
___ __
aside or correct sentence pursuant to 28 U.S.C. 2255. More than
4
five months later, through appointed counsel, petitioner filed an
amended habeas petition, alleging, inter alia, that the government had
_____ ____
suppressed evidence at trial, including a verbatim transcript of an
________
interview of Joseph Aceto conducted in Arkansas approximately two
months before trial by FBI Agent Crate in the presence of Assistant
United States Attorney ("AUSA") Mark Terison, the prosecutor at
petitioner's trial.** The amended section 2255 petition alleged
that the failure to provide the verbatim interview transcript violated
________
the government's duty to disclose exculpatory information under Brady
_____
v. Maryland, 373 U.S. 83 (1963). Petitioner demanded an evidentiary
________
hearing and the disqualification of AUSA Terison.
The government responded to the amended habeas petition on
January 4, 1991. On February 19, 1991, petitioner filed "Plaintiff's
Motion for Leave to File a Brief Reply Memorandum," asserting that
"several legal arguments and factual assertions raised by the govern-
______ __ ___ _______
ment . . . require a response from plaintiff." (emphasis added). The
____
district court granted the motion. Instead of filing a "brief reply
memorandum," however, on February 22, 1991, more than eight months
after the filing of the original habeas petition, petitioner filed
____________________
**Before trial, the government agreed to disclose all prior statements
**Before trial, the government agreed to disclose
of witness Aceto. AUSA Terison represented to the district court that
petitioner's trial counsel had been, or would be, provided "everything
[the government has] that's on paper from Mr. Aceto." Rather than
providing petitioner's trial counsel with the 72-page verbatim Aceto
________
interview transcript, however, the government submitted a redacted
summary of the Arkansas interview form "FBI 302." The government does
not deny knowledge of the existence of the verbatim interview tran-
________
script at the time of trial, but bases its decision to redact on
security grounds. See infra note 13.
___ _____
5
"Plaintiff's Reply to Government's Response to His 28 U.S.C. 2255
Motion," raising a Jencks Act claim for the first time.*** The
government did not respond to petitioner's Jencks Act claim prior to
the district court's denial of habeas relief on April 30, 1991. The
district court order dismissed the amended petition, without an
evidentiary hearing and without alluding to the Jencks Act claim. See
___
Barrett v. United States, 763 F. Supp. 658 (D. Me. 1991).
_______ ______ ______
An unsigned and undated motion purportedly submitted by petition-
er's counsel was docketed in the district court on May 24, 1991,
requesting reconsideration of the April 30 dismissal order on the
ground that the district court had not addressed the Jencks Act claim.
On May 31, 1991, petitioner filed a notice of appeal from the April 30
dismissal order. On June 6, 1991, petitioner's May 24 motion to
____________________
***In his reply brief on appeal, petitioner attempts, likewise for the
***In his reply brief on appeal, petitioner attempts, likewise for the
first time, to characterize the so-called "reply brief" filed in the
first time,
district court as a "traverse." See United States v. Benavente Gomez,
___ _____________ _______________
921 F.2d 378, 386 (1st Cir. 1990) (arguments not raised in opening
appellate brief are waived); Playboy Enterprises v. Public Service
____________________ ______________
Comm'n, 906 F.2d 25, 40 (1st Cir.) ("An appellant waives any issue
______
which it does not adequately raise in its initial brief, because in
'preparing briefs and arguments, an appellee is entitled to rely on
the content of an appellant's brief for the scope of the issues
appealed.'") (quoting Pignons S.A. de Mecanique v. Polaroid Corp., 701
_________________________ ______________
F.2d 1, 3 (1st Cir. 1983)) (citations omitted), cert. denied, 111 S.
____ ______
Ct. 388 (1990).
The Section 2255 rules do not contemplate the filing of a tra-
verse, see Rule 5, Rules Governing Section 2255 Proceedings, except in
___
"special circumstances," not present here, where the government's
response requests dismissal of the petition pursuant to Rule 9 ("De-
layed or Successive Motions"). See Advisory Committee Notes to Rule
___
5, Rules Governing Section 2255 Proceedings; United States v. Smith,
______________ _____
869 F.2d 835, 837-38 (5th Cir. 1989) ("[t]he rules under 2255 . . .
do not permit traverse pleadings unless the government moves for
dismissal under Rule 9"). Moreover, petitioner did not request or
obtain permission to file a traverse, but a "brief reply memorandum."
6
reconsider was stricken by the district court, as it was unsigned.
See Fed. R. Civ. P. 7(b)(3) ("All motions shall be signed in accor-
___
dance with Rule 11."); Fed. R. Civ. P. 11 ("If a . . . motion . . . is
not signed, it shall be stricken unless it is signed promptly after
the omission is called to the attention of the . . . movant."); see
___
also D. Me. L.R. 1(b), 3(d)(1).**** Thereafter, petitioner filed
____
two further motions for reconsideration, which the district court
denied. We turn to the resultant procedural snarl.
Treated as Rule 59(e) motions, all three motions for reconsidera-
tion were untimely. See Fed. R. Civ. P. 59(e). The ten-day time bar
___
under Rule 59(e) is jurisdictional. Rivera v. M/T Fossarina, 840 F.2d
______ _____________
152, 154 (1st Cir. 1988) ("ten-day limitation period of Rule 59(e) 'is
one of the few limitary periods which the court has no power to
enlarge'") (quoting Scola v. Boat Frances R., Inc., 618 F.2d 147, 155
_____ _____________________
(1st Cir. 1980). As the first motion to reconsider the April 30 order
was not even submitted until May 24, it was untimely, as were those
which followed.*****
Alternatively, were we to treat the three motions for reconsider-
ation as having been timely filed under Rule 60(b)(1), see Fed. R.
___
____________________
****The Federal Rules of Civil Procedure are applicable to 2255
****The Federal Rules of Civil Procedure are applicable to 2255
proceedings. See Fed. R. Civ. P. 1, 81(b); 28 U.S.C. 2242; see also
proceedings. See Fed. R. Civ. P. 1, 81(b); 28 U.S.C. 2242; see also
___ ___ ____
Rule 2(b) & Rule 5 advisory committee's note, Rules Governing 2255
Rule 2(b) & Rule 5 advisory committee's note, Rules Governing 2255
Proceedings; D. Me. L.R. 13.
Proceedings; D. Me. L.R. 13.
*****Moreover, a Rule 59(e) motion must be served within ten days.
*****Moreover, a Rule 59(e) motion must be served within ten days.
______
See Fed. R. Civ. P. 59(e). The first signed certificate of service
See Fed. R. Civ. P. 59(e). The first signed certificate of service
___
reflects that service was not made until June 28. See Rivera, 840
reflects that service was not made until June 28. See Rivera, 840
___ ______
F.2d at 155 (movant bears burden of establishing service of Rule 59(e)
F.2d at 155 (movant bears burden of establishing service of Rule 59(e)
motion).
motion).
7
Civ. P. 60(b)(1) (motion may be made within a reasonable time, not
more than one year), petitioner would fare no better, since the
district court orders denying the motions were never appealed.******-
Furthermore, as a practical matter, petitioner's failure to raise
the Jencks Act claim in a timely manner below precludes effective
appellate review on the merits. See Dziurgot, 897 F.2d at 1224 (claim
___ ________
not raised in 2255 motion will not be reviewed on appeal); cf.
___
United States v. Valencia-Copete, 792 F.2d 4, 5 (1st Cir. 1986)
______________ _______________
(direct appeal).******* Additionally, we would note, without
____________________
******As petitioner withdrew the third and final motion for reconsid-
******As petitioner withdrew the third and final motion for reconsid-
eration, notwithstanding our August 28, 1991 order directing the
eration, notwithstanding our August 28, 1991 order directing the
parties' attention to Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39
parties' attention to Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39
___________ __________________
(1st Cir. 1979) (defining procedure for filing and disposing of a Rule
(1st Cir. 1979) (defining procedure for filing and disposing of a Rule
60(b) motion while an appeal from the underlying judgment is pending
60(b) motion while an appeal from the underlying judgment is pending
in the court of appeals), petitioner plainly waived any claim of error
in the court of appeals), petitioner plainly waived any claim of error
relating to the denial of the motions for reconsideration.
relating to the denial of the motions for reconsideration.
*******Since we are unable to conduct effective appellate review
*******Since we are unable to conduct effective appellate review
without the benefit of the district court's consideration of the
without the benefit of the district court's consideration of the
Jencks Act claim, if called upon to do so in the future the district
Jencks Act claim, if called upon to do so in the future the district
court would be required to rule whether petitioner may raise the
court would be required to rule whether petitioner may raise the
Jencks Act claim in a successive 2255 petition. See Rule 9(b),
Jencks Act claim in a successive 2255 petition. See Rule 9(b),
___
Rules Governing Section 2255 Proceedings. The Supreme Court has held
Rules Governing Section 2255 Proceedings. The Supreme Court has held
that a successive 2254 petition presenting a ground for relief, not
that a successive 2254 petition presenting a ground for relief, not
previously raised, is to be given "full consideration [on] the merits
previously raised, is to be given "full consideration [on] the merits
. . . [unless] there has been an abuse of the writ or motion remedy;
. . . [unless] there has been an abuse of the writ or motion remedy;
and this the Government has the burden of pleading." Sanders v.
and this the Government has the burden of pleading." Sanders v.
_______
United States, 373 U.S. 1, 17 (1963) ( 2254); see Saville v. United
United States, 373 U.S. 1, 17 (1963) ( 2254); see Saville v. United
______________ ___ _______ ______
States, 451 F.2d 649 (1st Cir. 1971) (reversing district court denial
States, 451 F.2d 649 (1st Cir. 1971) (reversing district court denial
______
of third habeas petition, without evidentiary hearing, where court
of third habeas petition, without evidentiary hearing, where court
relied on denials of prior motions, but third petition raised two new
relied on denials of prior motions, but third petition raised two new
constitutional claims); 28 U.S.C. 2244(b) (successive applications
constitutional claims); 28 U.S.C. 2244(b) (successive applications
for 2255 relief "need not be entertained . . . unless the applica-
for 2255 relief "need not be entertained . . . unless the applica-
tion alleges and is predicated on a factual or other ground not
tion alleges and is predicated on a factual or other ground not
adjudicated on the hearing of the earlier application . . ., and
adjudicated on the hearing of the earlier application . . ., and
unless the court . . . is satisfied that the applicant has not on the
unless the court . . . is satisfied that the applicant has not on the
earlier application deliberately withheld the newly asserted ground or
earlier application deliberately withheld the newly asserted ground or
8
deciding, that the Jencks Act claim may not be cognizable under
section 2255 in any event, by virtue of the recognized rule that
nonconstitutional claims may not be presented in a section 2255
proceeding unless "the claimed error of law [represents] 'a fundamen-
tal defect which inherently results in a complete miscarriage of
justice.'" Fasano v. Hall, 615 F.2d 555, 557 (1st Cir.) (quoting
______ ____
Davis v. United States, 417 U.S. 333, 345 (1974)), cert. denied, 449
_____ _____________ ____ ______
U.S. 867 (1980); see United States v. Addonizio, 442 U.S. 178 (1979)
___ _____________ _________
(discussing rationale for restrictions on collateral attacks against
criminal convictions); United States v. Capua, 656 F.2d 1033, 1037
______________ _____
(5th Cir. 1981) ( 2255 proceeding distinguishing between cognizabili-
ty of "constitutional or jurisdictional errors on the one hand, and
mere errors of law on the other," and adverting to Davis criteria for
_____
identifying "mere errors of law"); see also Wilson v. United States,
___ ____ ______ _____________
554 F.2d 893, 894 (8th Cir.) (en banc) (Jencks Act claim not cog-
nizable under 2255), cert. denied, 434 U.S. 849 (1977); Lindhorst v.
____ ______ _________
United States, 585 F.2d 361, 366 (8th Cir. 1978) (same).
_____________
____________________
otherwise abused the writ"); 8C J. Moore, Moore's Federal Practice
otherwise abused the writ"); 8C J. Moore, Moore's Federal Practice
_________________________
15.07[2] (2d ed. 1992) ("If the section 2255 movant asserts a claim
15.07[2] (2d ed. 1992)
in a successive petition which he failed to assert in a prior section
2255 motion due to his deliberate bypass or inexcusable neglect, he is
deemed to have abused the section 2255 remedy under Rule 9(b)."). But
___
cf. McCleskey v. Zant, 111 S. Ct. 1454, 1470 (1991) ("If petitioner
___ _________ ____
cannot show cause, the failure to raise the claim in an earlier
petition may nonetheless be excused if he or she can show that a
fundamental miscarriage of justice would result from a failure to
entertain the claim.") ( 2254); Sanders, 373 U.S. at 15 ("successive
_______
petition" standard same under 2254 and 2255).
9
2. The Brady Claims
2. The Brady Claims
________________
a)Expectations of Lenity
a)Expectations of Lenity
______________________
Petitioner asserts that the government suppressed documentary
evidence indicating that Aceto may have expected lenient treatment on
an Arkansas murder charge in return for testimony against petitioner
on the federal charge for armed bank robbery. Petitioner argues that
the government deprived him of important impeachment evidence against
Aceto.
Prosecutorial nondisclosure of exculpatory evidence does not
assume unconstitutional dimensions unless the undisclosed evidence is
"material . . . to guilt or to punishment . . . ." Brady, 373 U.S. at
_____
87. "Since impeachment evidence is 'exculpatory' under Brady, . . .
_____
the question we ask in a prosecutorial nondisclosure setting is
'whether the omitted evidence is of sufficient materiality to call for
a new trial.'" United States v. Sanchez, 917 F.2d 607, 617 (1st Cir.
_____________ _______
1990) (quoting United States v. Imbruglia, 617 F.2d 1, 4 (1st Cir.
_____________ _________
1980), cert. denied, 111 S. Ct. 1625 (1991)). The materiality test
____ ______
under Brady is not met unless the nondisclosure of the evidence
_____
"undermine[s] confidence in the outcome of the trial," United States
_____________
v. Bagley, 473 U.S. 667, 682 (1985), which can occur only if "there is
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a reasonable probability that, had the evidence been disclosed to the
__________ ___________
defense, the result of the proceeding would have been different." Id.
___
at 682 (emphasis added); Sanchez, 917 F.2d at 617 (Bagley prescribes
_______ ______
"uniform standard of materiality for general application in all non-
disclosure cases").
10
The district court denied petitioner's initial request to cross-
examine Aceto at trial about the pending Arkansas murder indictment,
on the ground that there was no sufficient factual basis for finding
that the probative value of the untried murder indictment would
_______
outweigh substantially the severe risk of unfair prejudice.********-
See Fed. R. Evid. 608(b)(1) (whether to permit inquiry into specific
___
instance of conduct, other than conviction of crime, for purpose of
__________
proving witness' truthfulness or untruthfulness, is addressed to "the
discretion of the court"); see also 3 Weinstein's Evidence, 608[05]
___ ____ ____________________
(1991) (courts may apply Rule 403 safeguards under Rule 608(b)); Fed.
R. Evid. 403 (evidence may be excluded "if its probative value is
substantially outweighed by the danger of unfair prejudice"). Never-
theless, shortly thereafter, at "considerable expense and trouble to
the court and government," Barrett, 766 F.2d at 615, the district
_______
court recalled Aceto expressly to permit petitioner's trial counsel to
____________________
********At trial, petitioner's counsel established the existence of a
********At trial, petitioner's counsel established the existence of a
1976 plea agreement in which Aceto agreed to testify on behalf of the
1976 plea agreement in which Aceto agreed to testify on behalf of the
government in future criminal trials (including petitioner's trial for
armed bank robbery) in return for the government's promise to recom-
mend favorable treatment for Aceto in federal and state criminal
proceedings then pending against Aceto. See Barrett, 766 F.2d at 613-
___ _______
14 (discussing particulars of Aceto's 1976 plea agreement with the
government). Petitioner's later decision to abandon the cross-exami-
nation of Aceto on voir dire about the 1983 Arkansas murder indictment
____ ____
is not to be confused with petitioner's successful effort to demon-
strate to the jury Aceto's potential bias arising out of the 1976 plea
agreement. As to the latter, this court noted on direct appeal that
petitioner's "Sixth Amendment right was adequately protected and that
defense counsel, through extensive cross-examination, fully estab-
lished the potential bias of Aceto stemming . . . from . . . his plea
agreement . . . ." Id. As the district court noted in its opinion
___
dismissing the 2255 petition, "Aceto was thoroughly impeached [with]
. . . [t]his [1976] agreement . . . ." Barrett, 763 F. Supp. at 663.
_______
11
demonstrate, on voir dire, a reasonable basis for the claim that Aceto
____ ____
expected to "benefit in connection with his . . . homicide prosecution
as a result of his testimony in [petitioner's] case." Yet, after
eliciting the admission that there was a murder indictment pending
against Aceto, petitioner's trial counsel "suddenly gave up," id., and
___
abandoned all further interrogation of Aceto on voir dire. After
____ ____
several unsuccessful efforts to encourage defense counsel to pursue
the inquiry further, the district court excused Aceto.*********-
On direct appeal, it was held that petitioner's trial counsel had
been given "ample opportunity to make a record from which he could
argue that the witness was biased because of a particular hope or
expectation," Barrett, 766 F.2d at 615 (citing United States v.
_______ ______________
Tracey, 675 F.2d 433, 439 (1st Cir. 1982)), but that petitioner had
______
"failed . . . to establish . . . why inquiry into this most prejudi-
cial matter should be made before the jury." Id.
___
The claim presently before the court closely tracks the claim
rejected on direct appeal. We consider whether, but for the govern-
ment's nondisclosure of the Terison memorandum and the related docu-
ments, petitioner would have been allowed to inquire into the Arkansas
murder charge at trial and, if so, whether there is a reasonable
probability that the jury would have acquitted petitioner. Bagley,
______
____________________
*********The court observed:
*********The court observed:
I brought this witness back for what you represented to me
I brought this witness back for what you represented to me
was a particular purpose and I have afforded you an opportu-
was a particular purpose and I have afforded you an opportu-
nity to inquire into that purpose and you have elected not to
nity to inquire into that purpose and you have elected not to
pursue it.
pursue it.
12
473 U.S. at 678. Petitioner relies primarily on a January 24, 1984
file memorandum prepared by AUSA Terison. The Terison memorandum
states, in pertinent part:
On or about January 18, 1984 I talked to Tommy Brown who is a
state of Arkansas prosecutor responsible for the murder
prosecution of Joseph Aceto . . . . Brown also said that his
_____ ____ ____ ____ ___
case against Aceto was not a rock solid one and that both he
____ _______ _____ ___ ___ _ ____ _____ ___ ___ ____ ____ __
and Aceto may be interested in reaching some sort of plea
___ _____ ___ __ __________ __ ________ ____ ____ __ ____
arrangement whereby Aceto would agree to come to Maine to
___________ _______ _____ _____ _____ __ ____ __ _____ __
testify in the Barrett case.
_______ __ ___ _______ ____
(Emphasis added).**********
(i) Materiality of Undisclosed Documents
(i) Materiality of Undisclosed Documents
____________________________________
The present claim must fail unless the Terison memorandum and the
related documents, alone or in combination with the evidence admitted
at trial, would have facilitated petitioner's voir dire examination of
____ ____
Aceto sufficiently to have enabled establishment of the required
____________________
**********In addition to the Terison memorandum, petitioner relies on
**********In addition to the Terison memorandum, petitioner relies on
later documents, disclosed neither before nor during trial, which show
later documents,
_____
that Brown, the Arkansas prosecutor, cooperated in petitioner's
federal prosecution by relaying communications between AUSA Terison
and Aceto. These documents provide no independent support for an
inference that Aceto harbored any expectation of lenient treatment in
return for his testimony against petitioner, beyond whatever basis is
indicated in the Terison memorandum. As a matter of fact, these
documents would tend to support the inference that Aceto's testimony
against petitioner was not linked to any expectation of lenient
treatment on the Arkansas murder charge. In one document, for in-
stance, Aceto provides information pertinent to petitioner's upcoming
federal trial on the armed bank robbery charge, notwithstanding
Aceto's statement that he has rejected a plea agreement relating to
the Arkansas murder charge. See also infra note 11. Additionally,
___ ____ _____
the affidavit AUSA Terison submitted in the 2255 proceedings asserts
that he is unaware of any inducements to Aceto other than as disclosed
at trial, and that neither Terison nor his office took any action to
secure favorable treatment for Aceto in connection with the Arkansas
murder charge.
13
predicate for a reasonable belief that Aceto expected favorable
treatment from the Arkansas prosecutor in return for testimony against
petitioner on the federal charge. In other words, the petitioner must
demonstrate that the undisclosed documents contained either admissible
evidence, or inadmissible information, with which petitioner would
have been able to demonstrate to the district court that he was
entitledtoan evidentiaryhearingon thesection2255 petition.***********-
____________________
***********We are satisfied that the Terison memorandum (and related
***********We are satisfied that the Terison memorandum (and related
documents), simpliciter, would not have been sufficient to establish
documents), simpliciter, would not have been sufficient to establish
___________
an evidentiary base for a reasonable inference that Aceto harbored an
an evidentiary base for a reasonable inference that Aceto harbored an
expectation of leniency on the Arkansas murder charge, since these
expectation of leniency on the Arkansas murder charge, since these
documents were neither admissible in evidence nor directly probative
documents were neither admissible in evidence nor directly probative
of Aceto's expectations. Moreover, Aceto's actions do not indicate
of Aceto's expectations. Moreover, Aceto's actions do not indicate
____________
that there was any agreed quid pro quo for his testimony against
that there was any agreed quid pro quo for his testimony against
____ ___ ___
petitioner. In fact, the documents relied upon by petitioner show
petitioner. In fact, the documents relied upon by petitioner show
that Aceto rejected a plea agreement in connection with the Arkansas
that Aceto rejected a plea agreement in connection with the Arkansas
murder indictment prior to petitioner's trial, but after Aceto provid-
murder indictment prior to petitioner's trial, but after Aceto provid-
_____
ed information which assisted the government's prosecution of peti-
ed information which assisted the government's prosecution of peti-
tioner. Second, shortly after petitioner's trial ended, Aceto went to
tioner. Second, shortly after petitioner's trial ended, Aceto went to
____ __
trial on the Arkansas murder charge. Thus, there is no evidence that
trial on the Arkansas murder charge. Thus, there is no evidence that
_____
Aceto ever entered into a plea agreement relating to his testimony
Aceto ever entered into a plea agreement relating to his testimony
____
against petitioner. Although Aceto's trial resulted in a hung jury
against petitioner. Although Aceto's trial resulted in a hung jury
and Aceto subsequently pled guilty to the murder charge, the district
and Aceto subsequently pled guilty to the murder charge, the district
court supportably found, see Barrett, 763 F. Supp. at 661 n.2, (and
court supportably found, see Barrett, 763 F. Supp. at 661 n.2, (and
___ _______
petitioner does not challenge on appeal) that the Arkansas guilty plea
petitioner does not challenge on appeal) that the Arkansas guilty plea
was in no way connected with Aceto's testimony against petitioner.
was in no way connected with Aceto's testimony against petitioner.
Finally, petitioner's abandonment of the voir dire inquiry into
____ ____
Aceto's expectations for leniency, based exclusively on the pendency
of the murder indictment and Aceto's provision of testimony at peti-
tioner's trial, was resolved against petitioner on direct appeal,
Barrett, 766 F.2d at 615, and cannot be collaterally attacked in these
_______
proceedings. Murchu v. United States, 926 F.2d 50, 55 (1st Cir.)
______ ______________
("'Issues resolved by a prior appeal will not be reviewed again by way
of a 28 U.S.C. 2255 motion.'") (quoting Dirring v. United States,
_______ ______________
370 F.2d 862, 864 (1st Cir. 1967)), cert. denied, 112 S. Ct. 99
____ ______
(1991). Accordingly, we turn to consider whether the cumulative
effect of the Terison memorandum and related documents would have
enabled petitioner to establish an evidentiary base for inferring an
expectation of leniency on the part of Aceto, as distinguished from
some free-floating hope of benefit which could only have been substan-
tiated through direct inquiry as to Aceto's state of mind.
14
The only portion of the Terison memorandum even arguably proba-
tive of Aceto's state of mind the Arkansas prosecutor's statement
to Terison that Aceto might be interested in a plea agreement would
not have been admissible as evidence of the matter asserted, as it
constituted compound hearsay; that is, Terison's assertion as to what
Brown stated might interest Aceto.************ At most,
as the district court noted, access to the Terison memorandum might
have prompted further interrogation of Aceto as to whether the Terison
memorandum was based on expressions of interest on the part of Aceto,
or only on the hopes of the Arkansas prosecutor. Yet at trial peti-
tioner insistently refused the clear opportunity, indeed the explicit
invitation, see supra note 9, to interrogate Aceto on voir dire
___ _____ ____ ____
concerning any benefit he hoped for, or expected, in return for
____________________
************Similarly, the related documents demonstrate an ongoing
************Similarly, the related documents demonstrate an ongoing
cooperative relationship between the state and federal prosecutors to
cooperative relationship between the state and federal prosecutors to
arrange Aceto's participation in petitioner's federal trial for armed
arrange Aceto's participation in petitioner's federal trial for armed
bank robbery, but contain no representation, hearsay or otherwise,
bank robbery, but contain no representation, hearsay or otherwise,
probative of Aceto's state of mind relating to any expectation of
probative of Aceto's state of mind relating to any expectation of
_____ __ ____
leniency. See also supra notes 10 & 11. The two references to a
leniency. See also supra notes 10 & 11. The two references to a
___ ____ _____
possible interest in a plea agreement make no connection between a
possible interest in a plea agreement make no connection between a
possible plea to the Arkansas murder charge and any testimony or other
possible plea to the Arkansas murder charge and any testimony or other
assistance in the federal prosecution against petitioner. In a letter
assistance in the federal prosecution against petitioner. In a letter
to the Arkansas prosecutor, Aceto first indicates that he has already
to the Arkansas prosecutor, Aceto first indicates that he has already
forwarded certain requested information relating to petitioner's
forwarded certain requested information relating to petitioner's
federal trial. In the next paragraph, Aceto rejects a plea agreement
federal trial. In the next paragraph, Aceto rejects a plea agreement
without linking its rejection in any way to the assistance he was
without linking its rejection in any way to the assistance he was
providing to the federal prosecution against petitioner. In another
providing to the federal prosecution against petitioner. In another
letter, Brown recommends a plea agreement and makes no mention of the
letter, Brown recommends a plea agreement and makes no mention of the
federal prosecution. The documents nevertheless demonstrate a factual
federal prosecution. The documents nevertheless demonstrate a factual
predicate for inferring that Aceto's testimony at petitioner's trial
predicate for inferring that Aceto's testimony at petitioner's trial
was facilitated through the cooperation of the Arkansas prosecutor and
was facilitated through the cooperation of the Arkansas prosecutor and
AUSA Terison, which might have provided encouragement to pursue the
AUSA Terison, which might have provided encouragement to pursue the
voir dire examination of Aceto at trial. See infra at pp. 16-18.
voir dire examination of Aceto at trial. See infra at pp. 16-18.
____ ____ ___ _____
15
testimony against petitioner.
The entire purpose of the voir dire examination, as all concerned
____ ____
well understood, was to afford petitioner an opportunity to demon-
strate a factual predicate for inferring that Aceto expected favorable
treatment in connection with the pending murder indictment in return
for his testimony against petitioner. On voir dire, without the
____ ____
benefit of the Terison memorandum or the related documents, petitione-
r's trial counsel elicited the information that a murder indictment
was pending against Aceto. Nevertheless, despite the fact that the
admission of the murder indictment depended upon the establishment of
some evidence as to Aceto's state of mind on the subject, or some
________ _____ __ ____
other reasonable evidentiary basis for inferring the existence of a
connection between Aceto's testimony against petitioner and an expec-
tation, understanding, or agreement concerning lenient treatment on
the murder charge, Aceto was "never asked the critical question
whether the government had made any agreements with respect to the
pending charge or whether Aceto had some hope of leniency with respect
thereto." Barrett, 766 F.2d at 615. Notwithstanding the district
_______
court's earnest efforts, petitioner's trial counsel relinquished the
opportunity to examine Aceto concerning any agreement or understand-
ings which may have been reached, or any hopes Aceto may have har-
bored, in connection with his testimony against petitioner. The
government's belated disclosure of the Terison memorandum and the
related documents cannot efface petitioner's plain election to abandon
16
any
directinquiryastoAceto'shopesorexpectationsforleniency.*************
The information in the Terison memorandum and the related docu-
ments is entirely cumulative of the evidence available to petitioner
at voir dire; that is, principally, the pending murder indictment and
____ ____
Aceto's appearance as a witness for the prosecution at petitioner's
federal trial. At voir dire, petitioner knew about the pending murder
____ ____
indictment against Aceto, and petitioner had been provided with the
Form 302 interview summary which revealed that a "Thomas Brown,
Prosecutor's Office," participated in the Aceto interview. Moreover,
the Form 302 provided to petitioner plainly revealed itself as a
redacted version of the original Form 302, in that it exhibited a
large blank space between Brown's name and the ensuing designation
that Brown was a prosecutor located in the most likely place for a
designation of Brown's full title. Yet, despite this information,
____________________
*************In these circumstances we do not think that a criminal
*************In these circumstances we do not think that a criminal
defendant who possessed all the information necessary to spur inquiry
defendant who possessed all the information necessary to spur inquiry
into the state of mind of the key prosecution witness at trial can
into the state of mind of the key prosecution witness at trial can
decline the opportunity and later rely on speculation and conjecture
decline the opportunity and later rely on speculation and conjecture
to demonstrate that cumulative impeachment evidence not available at
to demonstrate that cumulative impeachment evidence not available at
trial would have resulted in an acquittal. The decision to abandon
trial would have resulted in an acquittal. The decision to abandon
the voir dire examination of Aceto appears to have been tactical. For
the voir dire examination of Aceto appears to have been tactical. For
____ ____
instance, although petitioner knew of the pending murder indictment,
instance, although petitioner knew of the pending murder indictment,
not only was Aceto not asked where the indictment was pending, but no
not only was Aceto not asked where the indictment was pending, but no
attempt was made to inquire whether Prosecutor Brown, affiliation
attempt was made to inquire whether Prosecutor Brown, affiliation
unspecified, was in any way involved with the pending murder indict-
unspecified, was in any way involved with the pending murder indict-
ment. Although the entire effort to delimit disclosures relating to
ment. Although the entire effort to delimit disclosures relating to
the indictment was based on the government's concerns for Aceto's
the indictment was based on the government's concerns for Aceto's
personal security, the linking of the pending murder indictment with
personal security, the linking of the pending murder indictment with
Prosecutor Brown (and Brown's known participation in Terison's inter-
Prosecutor Brown (and Brown's known participation in Terison's inter-
view of Aceto) would have disclosed the substantial equivalent of all
view of Aceto) would have disclosed the substantial equivalent of all
the pertinent information contained in the undisclosed Terison memo-
the pertinent information contained in the undisclosed Terison memo-
randum, and related documents, without posing any additional risk to
randum, and related documents, without posing any additional risk to
Aceto's security.
Aceto's security.
17
petitioner's trial counsel never asked Aceto whether Prosecutor Brown
had anything to do with the pending murder indictment against Aceto.
We believe the record reveals an abiding tactical reluctance to learn
whether the obvious redaction in the Form 302 provided to petitioner
was pertinent to his defense.
Petitioner offers no nonspeculative ground whatever for conclud-
ing that the undisclosed cumulative evidence would have spurred
further inquiry into Aceto's state of mind, let alone a more fruitful
inquiry.************** Accordingly, we conclude that
the unavailability of the cumulative impeachment evidence contained in
the Terison memorandum, and related documents, did not affect the
outcome of the trial. Bagley, 473 U.S. at
______
678.***************
____________________
**************In addition, of course, through extensive cross-examina-
**************In addition, of course, through extensive cross-examina-
tion at trial "the grounds for bias on the part of Aceto were made
tion at trial "the grounds for bias on the part of Aceto were made
very clear to the jury." Barrett, 766 F.2d at 615 n.6. As the
very clear to the jury." Barrett, 766 F.2d at 615 n.6. As the
_______
district court supportably found, "Aceto was thoroughly impeached by
district court supportably found, "Aceto was thoroughly impeached by
far more substantial means: his mental illness, inconsistencies
far more substantial means: his mental illness, inconsistencies
between trial and previous testimony, his prior criminal behavior, and
between trial and previous testimony, his prior criminal behavior, and
his [1976] plea agreement with the government." Barrett, 763 F. Supp.
his [1976] plea agreement with the government." Barrett, 763 F. Supp.
_______
at 663. See also infra note 16.
at 663. See also infra note 16.
___ ____ _____
***************Although petitioner argued below that the transcript of
***************Although petitioner argued below that the transcript of
the Arkansas interview was Brady material, see Barrett, 763 F. Supp.
the Arkansas interview was Brady material, see Barrett, 763 F. Supp.
_____ ___ _______
at 662-663, on appeal he adverts to the issue in perfunctory fashion
at 662-663, on appeal he adverts to the issue in perfunctory fashion
only, never identifying it as Brady material, as distinguished from
only, never identifying it as Brady material, as distinguished from
_____
Jencks Act material, see text supra at pp. 5-6. We deem any such
Jencks Act material, see text supra at pp. 5-6. We deem any such
__________ ___ _____
Brady claim to have been waived. See United States v. Zannino, 895
Brady claim to have been waived. See United States v. Zannino, 895
_____ ___ _____________ _______
F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990). In any
F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990). In any
____ ______
event, a careful comparison of the undisclosed verbatim transcript
event, a careful comparison of the undisclosed verbatim transcript
________
with the redacted Form 302 version of the interview and Aceto's trial
with the redacted Form 302 version of the interview and Aceto's trial
testimony satisfies us that the claimed inconsistencies were minor and
testimony satisfies us that the claimed inconsistencies were minor and
far from sufficient to "undermine confidence in the outcome of the
far from sufficient to "undermine confidence in the outcome of the
trial." Bagley, 473 U.S. at 678.
trial." Bagley, 473 U.S. at 678.
______
18
b)Aceto's Mental State
b)Aceto's Mental State
____________________
Petitioner claims that the government withheld four documents
wherein Aceto is diagnosed as a paranoid schizophrenic who was receiv-
ing personal messages via radio and television. As the district court
stated,* and this court observed on direct appeal,* an abundance of
damning impeachment evidence was adduced at trial as to Aceto's mental
instability. See also supra note 14. Given all the "damaging [trial]
___ ____ _____
evidence concerning Aceto's mental status," see Barrett, 766 F.2d at
___ _______
615-16, we see no reason to disturb the district court finding, see
___
Barrett, 763 F. Supp. at 664, that there is no reasonable probability
_______
that the cumulative impeachment evidence in these undisclosed diagno-
ses would have affected the outcome of the trial. See Bagley, 473
___ ______
U.S. at 678.
3. Ineffective Assistance Claim
3. Ineffective Assistance Claim
____________________________
Petitioner claims that trial counsel's representation was so
____________________
*The district court characterized the trial testimony presented by
*The district court characterized the trial testimony presented by
Aceto's psychiatrist as indicating:
Aceto's psychiatrist as indicating:
that Aceto was a victim of paranoid schizophrenia and that he
that Aceto was a victim of paranoid schizophrenia and that he
was psychotic, delusional and probably paranoid and subject
was psychotic, delusional and probably paranoid and subject
to hallucinations . . . [and that] these conditions should be
to hallucinations . . . [and that] these conditions should be
taken to have a severely adverse effect upon the reliability
taken to have a severely adverse effect upon the reliability
of Mr. Aceto's testimony and . . . could well undermine his
of Mr. Aceto's testimony and . . . could well undermine his
ability to tell the truth.
ability to tell the truth.
_______
Barrett, 598 F. Supp. at 477 (emphasis in original).
Barrett, 598 F. Supp. at 477 (emphasis in original).
_______
*On direct appeal, this court adverted to the trial evidence that
*On direct appeal, this court adverted to the trial evidence that
Aceto had been institutionalized three times and, not long before
Aceto had been institutionalized three times and, not long before
trial, had been prescribed 600 milligrams of Mellaril daily, which
trial, had been prescribed 600 milligrams of Mellaril daily, which
dosage often causes "confus[ion between] fact and fantasy." Barrett,
dosage often causes "confus[ion between] fact and fantasy." Barrett,
_______
766 F.2d at 615-16.
766 F.2d at 615-16.
19
deficient as to amount to a denial of his Sixth Amendment right to the
effective assistance of counsel. See Strickland v. Washington, 466
___ __________ __________
U.S. 668 (1984). In response to an inquiry from counsel, petitioner
testified on direct examination that he shot a person in self-defense
in 1963 and spent thirteen years in prison before the conviction was
vacated. The government responded by introducing the death certifi-
cate, which indicated that the victim had been shot in the back.
Petitioner must demonstrate that the alleged deficiencies in
professional performance assumed unconstitutional dimensions and
resulted in prejudice "so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable." Strickland, 466 U.S.
__________
at 687. Strickland cautions reviewing courts to "indulge a strong
__________
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance . . . 'considered to be sound trial
strategy . . .[,]'" id. at 689 (quoting Michel v. Louisiana, 350 U.S.
___ ______ _________
91, 101 (1955)), and that "strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable." Id. at 690 (emphasis added). Thus, "a
_________ _______________ ___
defendant must allege and demonstrate that his counsel's error clearly
______ ___ ___________
'resulted from neglect or ignorance rather than from informed, profes-
sional judgment.'" United States v. Bosch, 584 F.2d 1113, 1121 (1st
_____________ _____
Cir. 1978) (quoting Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir.
________ ________
1977), cert. denied, 435 U.S. 1011 (1978)) (emphasis added); see
____ ______ ___
United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991) (citing
_____________ _______
Bosch) (defendant bears burden of demonstrating deficient performance;
_____
20
performance standard is "to be applied not in hindsight, but based on
what the lawyer knew, or should have known, at the time his tactical
choiceswere madeand implemented"),cert. denied,112 S. Ct.986 (1992).**
____ ______
We note at the outset that petitioner does not advance the
contention that counsel's trial strategy resulted from any failure to
conduct a "thorough investigation of law and facts," see Strickland,
___ __________
466 U.S. at 690, but merely that introduction of petitioner's self-
defense testimony was not a "plausible option." Id. Petitioner's
___
failure to allege, see Bosch, 584 F.2d at 1121, let alone demonstrate,
______ ___ _____
see id., that counsel's tactical decision "resulted from neglect or
___ ___
ignorance," id., effectively insulates counsel's choice among plausi-
___
ble options from successful collateral challenge in the present
circumstances. Strickland, 466 U.S. at 690.
__________
As noted on direct appeal, see Barrett, 766 F.2d at 618, trial
___ _______
____________________
**Inasmuch as trial counsel's effort to elicit that petitioner had
**Inasmuch as trial counsel's effort to elicit that petitioner had
acted in self-defense opened the door to the introduction of the death
acted in self-defense opened the door to the introduction of the death
certificate, petitioner contends that counsel need merely have elicit-
certificate, petitioner contends that counsel need merely have elicit-
ed testimony that petitioner had served 13 years in prison by the time
ed testimony that petitioner had served 13 years in prison by the time
his 1963 murder conviction was vacated. Petitioner latches on to
his 1963 murder conviction was vacated. Petitioner latches on to
language in the opinion affirming his conviction on direct appeal.
language in the opinion affirming his conviction on direct appeal.
We may question whether such detail was necessary in order
We may question whether such detail was necessary in order
either to explain his being in prison or to make his point
either to explain his being in prison or to make his point
that he "was wrongfully incarcerated for 13 years, had no
that he "was wrongfully incarcerated for 13 years, had no
faith in the system, and therefore took to cover when Aceto
faith in the system, and therefore took to cover when Aceto
implicated him." The simple facts that he was convicted and
implicated him." The simple facts that he was convicted and
___ ______ _____ ____ __ ___ _________ ___
served 13 years, and that his conviction was finally over-
served 13 years, and that his conviction was finally over-
______ __ _____ ___ ____ ___ __________ ___ _______ _____
turned would seem to serve both purposes sufficiently.
turned would seem to serve both purposes sufficiently.
______ _____ ____ __ _____ ____ ________ ____________
Barrett, 766 F.2d at 619 (emphasis added). However, even though we
Barrett, 766 F.2d at 619 (emphasis added). However, even though we
_______
may question informed trial counsel's tactical decisions, we may not
may question informed trial counsel's tactical decisions, we may not
________
find a deficient professional performance in the constitutional sense
find a deficient professional performance in the constitutional sense
unless the challenged decisions were not "plausible options." Strick-
unless the challenged decisions were not "plausible options." Strick-
_______
land, 466 U.S. at 690.
land, 466 U.S. at 690.
____
21
counsel advanced two reasons for inquiring into petitioner's 1963
murder conviction, and both were plausible. The principal aim of the
self-defense initiative was to establish that petitioner's fugitive
status following the armed bank robbery for which he was on trial "was
not, as the government would have it, [evidence of petitioner's]
guilt, but . . . of [petitioner's] lack of faith in the justice
system." Id. The second purpose, as articulated by the district
___
court and acknowledged by defense counsel, was to establish petitione-
r's credibility as a witness and "explain[] the fact that he was
previously in prison." Id. Thus, as the district court ruled, the
___
decision to apprise the jury of the petitioner's invalid murder
conviction rather clearly represented a calculated defense tactic.
The district court explained:
The Court cannot find that counsel's decision to introduce
_________
the self-defense issue was constitutionally unreasonable.
Petitioner concedes that the decision was tactical . . . .
[c]ounsel could well have decided that the jury would be more
___ ____ _____ __ ____
sympathetic to Petitioner if it heard the details of the
___________ __ __ _____ ___ _______
killing from him. Such a decision is indeed strategic and,
____ ___
in the context of this most thoroughly-prepared trial, un-
challengeable.
Barrett, 763 F. Supp. at 664-65 (emphasis added). Therefore, we
_______
cannot conclude that counsel's decision to pursue this strategic
initiative amounted to ineffective assistance.***
____________________
***Petitioner adverts to trial counsel's failure to offer Evidence
***Petitioner adverts to trial counsel's failure to offer Evidence
Rule 106 as a basis for introducing transcripts of petitioner's 1963
Rule 106 as a basis for introducing transcripts of petitioner's 1963
murder trial to rebut the impact of the death certificate. Since
murder trial to rebut the impact of the death certificate. Since
petitioner merely adverts to the claim in a perfunctory fashion in a
petitioner merely adverts to the claim in a perfunctory fashion in a
footnote, and without "developed argumentation," the claim is deemed
footnote, and without "developed argumentation," the claim is deemed
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.)
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.)
___ _____________ _______
(noting "settled appellate rule" that "issues adverted to in a per-
(noting "settled appellate rule" that "issues adverted to in a per-
22
4. Newly Discovered Evidence
4. Newly Discovered Evidence
_________________________
Finally, petitioner points to newly discovered evidence as
grounds for an evidentiary hearing and a new trial. Codefendants
Thomas Manning and Raymond Levasseur, unavailable at the time of
petitioner's trial, submitted substantively identical affidavits which
flatly attest: I did not rob the Northeast Bank in Portland, Maine
with James Barrett.
We need not determine whether newly discovered evidence is a
cognizable ground for obtaining a new trial in proceedings under
section 2255,**** since the present claim cannot succeed in any event.
____________________
functory manner, unaccompanied by some effort at developed argumenta-
functory manner, unaccompanied by some effort at developed argumenta-
tion, are deemed waived), cert. denied, 494 U.S. 1082 (1990). More-
tion, are deemed waived), cert. denied, 494 U.S. 1082 (1990). More-
____ ______
over, the claim is not only problematic on the merits, but the deci-
over, the claim is not only problematic on the merits, but the deci-
sion not to emphasize the conflict in evidence which resulted in a
sion not to emphasize the conflict in evidence which resulted in a
_________ ________ _____ ________ __ _
jury verdict against petitioner at the original trial, certainly
jury verdict against petitioner at the original trial, certainly
____ _______ _______ __________
cannot be second-guessed on collateral review as an implausible
cannot be second-guessed on collateral review as an implausible
tactical option.
tactical option.
The district court excluded the rebuttal evidence on the ground
The district court excluded the rebuttal evidence on the ground
that the transcripts amounted to inadmissible hearsay. See Fed. R.
that the transcripts amounted to inadmissible hearsay. See Fed. R.
___
Evid. 804(b)(1). Although we need not resolve the matter now, we do
Evid. 804(b)(1). Although we need not resolve the matter now, we do
note that there is considerable disagreement whether Fed. R. Evid. 106
note that there is considerable disagreement whether Fed. R. Evid. 106
can ever serve as a basis for admitting evidence which is inadmissible
can ever serve as a basis for admitting evidence which is inadmissible
on other grounds. Compare 1 J. Weinstein & M. Bergher, Weinstein's
on other grounds. Compare 1 J. Weinstein & M. Bergher, Weinstein's
_______ ___________
Evidence, 106[02] (Rule 106 "covers an order of proof problem; it is
Evidence, 106[02] (Rule 106 "covers an order of proof problem; it is
________
not designed to make something admissible that should be excluded");
not designed to make something admissible that should be excluded");
United States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982) (same);
United States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982) (same);
______ ______ _______
United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.) (same),
United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.) (same),
______ ______ ________
cert. denied, 454 U.S. 830, and cert. denied, 454 U.S. 847 (1981),
cert. denied, 454 U.S. 830, and cert. denied, 454 U.S. 847 (1981),
____ ______ ___ _____ ______
with 21 Charles A. Wright & Kenneth W. Graham, Federal Practice and
with 21 Charles A. Wright & Kenneth W. Graham, Federal Practice and
____ _______ ________ ___
Procedure, 5072, 5078 (Rule 106 can fulfill its function adequately
Procedure, 5072, 5078 (Rule 106 can fulfill its function adequately
_________
only if otherwise inadmissible evidence can be admitted under the
only if otherwise inadmissible evidence can be admitted under the
rule); United States v. Sutton, 801 F.2d 1346, 1368-69 (D.C. Cir.
rule); United States v. Sutton, 801 F.2d 1346, 1368-69 (D.C. Cir.
______ ______ ______
1986) (same).
1986) (same).
****See Cruz-Sanchez v. Rivera-Cordero, 835 F.2d 947, 948-49 (1st Cir.
****See Cruz-Sanchez v. Rivera-Cordero, 835 F.2d 947, 948-49 (1st Cir.
___ ____________ ______________
1987) ("it is not even clear that newly discovered evidence is a
1987) ("it is not even clear that newly discovered evidence is a
ground for section 2255 relief"); United States v. Pelegrina, 601 F.2d
ground for section 2255 relief"); United States v. Pelegrina, 601 F.2d
_____________ _________
18, 19 (1st Cir. 1979) (declining to decide whether newly discovered
18, 19 (1st Cir. 1979) (declining to decide whether newly discovered
23
At a minimum, petitioner would be required to meet the conventional
criteria for obtaining a new trial on the ground of newly discovered
evidence. Cruz-Sanchez v. Rivera-Cordero, 835 F.2d 947, 948 (1st Cir.
____________ ______________
1987); see Lindhorst v. United States, 658 F.2d 598, 602 (8th Cir.
___ _________ _____________
1981) (request for 2255 relief based on newly discovered evidence
reviewable under standards applicable to motion for new trial under
Fed. R. Crim. P. 33), cert. denied, 454 U.S. 1153 (1982). Thus,
____ ______
petitioner must show, among other things, that "the new evidence is
material and is not merely cumulative or impeaching . . . ." United
__________ ______
States v. Benavente-Gomez, 921 F.2d 378, 382 (1st Cir. 1990) (emphasis
______ _______________
added); United States v. Martin, 815 F.2d 818, 824 (1st Cir.), cert.
_____________ ______ ____
denied, 484 U.S. 825 (1987); see United States v. Rodriguez, 738 F.2d
______ ___ _____________ _________
13, 18 (1st Cir. 1984) (on motion for new trial, "[i]mpeachment
evidence is presumptively immaterial"); United States v. Pelegrina,
______________ _________
601 F.2d 18, 21 (1st Cir. 1979) ("impeaching evidence is generally
treated as immaterial" on motion for new trial); United States v.
______________
Bonadonna, 775 F.2d 949, 957 (8th Cir. 1985) ("newly discovered
_________
evidence which is merely impeaching normally cannot form the basis for
a new trial"); see generally 3 Charles A. Wright, Federal Practice and
___ _________ ____________________
Procedure 557 (1982). Since it does not bear directly on the
_________
defendant's guilt or innocence, "impeachment evidence . . . [does] not
rise to the level of materiality that would be likely to cause a
____________________
evidence is ground for 2255 relief). But cf. Grace v. Butterworth,
evidence is ground for 2255 relief). But cf. Grace v. Butterworth,
___ ___ _____ ___________
586 F.2d 878, 880 (1st Cir. 1978) ("It may be assumed that a compel-
586 F.2d 878, 880 (1st Cir. 1978) ("It may be assumed that a compel-
ling claim for relief might be presented when newly available evidence
ling claim for relief might be presented when newly available evidence
conclusively shows that a vital mistake had been made.").
conclusively shows that a vital mistake had been made.").
24
different result at a new trial." Benavente-Gomez, 921 F.2d at 383.
_______________
The district court summarily may dismiss a section 2255 motion,
without an evidentiary hearing, if its claims are inadequate on their
face. DiCarlo, 575 F.2d at 974. Therefore, plenary presentation is
_______
not required unless the motion "contain[s] assertions of fact that a
____ _
petitioner is in a position to establish by competent evidence."
__________ __ __ _ ________ __ _________ __ _________ ________
United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987) (emphasis
______________ ______
added); see Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974)
___ _____ ______________
(appellate court views summary dismissal with disfavor if motion was
supported by "a sufficient affidavit") (emphasis in original); cf.
__________ ___
Machibroda v. United States, 368 U.S. 487, 495-96 (1962) (hearing
__________ ______________
required where it appears reasonably likely that evidence exists which
________ ______
could either corroborate or disprove material allegations supported by
affidavits). Thus, the threshold issue is "whether, if the evidence
should be offered at a hearing, it would be admissible proof entitling
__________
the petitioner to relief." Dalli, 491 F.2d at 760 (emphasis added).
_____
Assuming their truth, see Myatt, 875 F.2d at 11, these affidavits
___ _____
assert merely that Manning and Levasseur did not rob the Northeast
Bank with Barrett. For the testimony to be admissible in evidence,
the putative witness must be shown to have sufficient personal knowl-
edge of the matter at issue. See Fed. R. Evid. 602 ("A witness may
___
not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the
matter."); Fed. R. Evid. 104(b); see United States v. Doe, No. 91-
___ _____________ ___
1008, 1992 U.S. App. LEXIS 5515, at *6 (1st Cir. March 30, 1992)
25
(evidence inadmissible unless "'a reasonable trier of fact could
believe the witness had personal knowledge'") (quoting Folio Impres-
_____________
sions, Inc. v. Byer California, 937 F.2d 759, 764 (2d Cir. 1991));
___________ ________________
United States v. Sorrentino, 726 F.2d 876, 887 (1st Cir. 1984) (af-
_____________ __________
firming district court's exclusion of testimony because witness lacked
personal knowledge concerning subject of testimony); cf. Fed. R. Civ.
___
P. 56(e) (for summary judgment purposes, "affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is compe-
_____ ____ _____________ ____ ___ _______ __ ______
tent to testify to the matters stated therein") (emphasis added); Fed.
____ __ _______ __ ___ _______ ______ _______
R. Civ. P. 81(a)(2) (Civil Rules applicable in habeas corpus proceed-
ings where practice is not otherwise dictated by statute).
These affidavits present no foundational facts as to the affian-
ts' personal knowledge. The affidavits assert neither that the
affiants were present at the time of the robbery, nor that they were
elsewhere with Barrett at the time of the robbery. Although the
affidavits state categorically that the affiants did not participate
___ ________ ___ ___ ___________
in the bank robbery with petitioner, the affiants do not represent
____ __________
that petitioner did not participate in the bank robbery with others.
Thus, their statements do not bear directly on petitioner's guilt or
innocence, but instead constitute cumulative impeachment evidence
against Aceto, who testified that Levasseur and Manning, as well as
Aceto and the petitioner, robbed the bank. Since petitioner did not
demonstrate that the newly discovered evidence would have been admis-
sible at trial, either as alibi evidence or as evidence of the identi-
26
fication of the participants in the bank robbery, neither an eviden-
tiary hearing nor a new trial was warranted. See Dalli, 491 F.2d at
___ _____
761 (no evidentiary hearing warranted where petitioner did not demon-
strate that allegations could be "establish[ed] by competent evi-
dence"). Accordingly, the "newly discovered evidence" warranted
neither an evidentiary hearing nor a new trial. See Benavente Gomez,
___ _______________
921 F.2d at 382; Martin, 815 F.2d at 824.
______
As the district court correctly concluded that petitioner was
entitled to no relief, the judgment must be affirmed.
Affirmed.
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27