Barrett v. U.S.

• Decision Date: 10 January 1992
• Docket Number: No. 91-1568,91-1568
• Parties: James BARRETT, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1184

965 F.2d 1184

James BARRETT, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 91-1568.

United States Court of Appeals First Circuit.

Heard Jan. 10, 1992.

Decided June 8, 1992.

Kenneth J. King with whom Fenn & King, Jamaica Plain, was on brief, for petitioner, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief, for respondent, appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

James W. Barrett [hereinafter "petitioner"] appeals the dismissal of a motion to vacate or set aside his conviction and sentence for an armed bank robbery which occurred in Portland, 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (3) a Sixth Amendment ineffective assistance claim; and (4) an alleged entitlement to a new trial based on newly discovered evidence. We affirm the district court judgment.

I 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 petitioner's trial, Levasseur and Manning were fugitives. The trial "ultimately 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. 923, 106 S.Ct. 258, 88 L.Ed.2d 264 (1985) which is the principal focus of the present appeal as well. ¹

II DISCUSSION

Petitioner challenges the dismissal of the section 2255 petition without an evidentiary hearing. Petitioner was required to demonstrate 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, 99 S.Ct. 115, 58 L.Ed.2d 129 (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 entitled 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 (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 hearing, and, as is the case for findings of the trial court generally, those findings will not be overturned unless they are clearly erroneous." 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, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990).

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 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. ² 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 government ... 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 "Plaintiff's Reply to Government's Response to His 28 U.S.C. § 2255 Motion," raising a Jencks Act claim for the first time. ³ 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 petitioner'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 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 accordance 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). ⁴ 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 reconsideration 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. ⁵

Alternatively, were we to treat the three motions for reconsideration as having been timely filed under Rule 60(b)(1), see Fed.R.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. ⁶

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). ⁷ Additionally, we would note, without 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 fundamental 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, 94 S.Ct. 2298, 2302, 41 L.Ed.2d 109 (1974)), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 86 (1980); see United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (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 cognizability 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 cognizable under § 2255), cert. denied, 434 U.S. 849, 98 S.Ct. 158, 54 L.Ed.2d 117 (1977); Lindhorst v. United States, 585 F.2d 361, 366 (8th Cir.1978) (same).

2. The Brady Claims

a) Expectations of Lenity

Petitioner asserts that the government suppressed documentary evidence indicating that Aceto may have expected lenient treatment on an Arkansas...