U.S. v. Barrett, No. 96-2355

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore Torruella, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch; LYNCH
Citation178 F.3d 34
Parties, UNITED STATES, Respondent, Appellee, v. James BARRETT, Petitioner, Appellant. . Heard
Decision Date02 February 1999
Docket NumberNo. 96-2355

178 F.3d 34,
UNITED STATES, Respondent, Appellee,
v.
James BARRETT, Petitioner, Appellant.
No. 96-2355.
United States Court of Appeals,
First Circuit.
Heard Feb. 2, 1999.
Decided May 27, 1999.

John G.S. Flym, with whom Liz Bostwick was on brief, for appellant.

Margaret D. McGaughey, Assistant U.S. Attorney, with whom Jay P. McCloskey, U.S. Attorney, was on brief, for appellee.

Before Torruella, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

LYNCH, Circuit Judge.

A federal prisoner/parolee, convicted of a serious crime committed twenty-five years ago, seeks to avoid the restrictions imposed by Congress in 1996 on successive petitions for post-conviction relief and argues that it is illegal and unconstitutional to deny him the ability to raise an argument about the validity of his conviction that he could have raised properly in 1990. He has not shown that he is actually innocent and no claims of constitutional dimension are raised on these facts. Under the various applicable gatekeeping mechanisms, which augment society's interests in finality of criminal convictions where there has been no miscarriage of justice, he has not satisfied the preconditions in 28 U.S.C. § 2255, as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), that would allow him to have the merits of his claim reviewed. He cannot evade the restrictions of § 2255 by resort to the habeas statute, 28 U.S.C. § 2241, or the All Writs Act, 28 U.S.C. § 1651. Resolution of this case involves exploration of the various statutes and legal doctrines authorizing limited review of claims for post-conviction relief. Our conclusion is that while there are very rare circumstances in which review may exist even if the requirements of § 2255 have not been met, this case presents none of those circumstances.

James Barrett was convicted of a bank robbery in federal court in 1984. He brought an unsuccessful appeal in 1984 and an unsuccessful § 2255 petition in 1990, and now seeks to bring another petition attacking his conviction. The primary legal questions presented in this case are whether the petition before us is a "second or successive" § 2255 petition, 28 U.S.C. § 2255, and whether Barrett may use § 2241 or § 1651 to bring a claim that would otherwise be barred under § 2255 and 28 U.S.C. § 2244. Each of these raises subsidiary questions; several are questions of first impression for this circuit.

I

In 1975, three armed men wearing ski masks robbed a bank in Portland, Maine. In 1984, James Barrett was tried for that robbery. Barrett denied any involvement; the chief prosecution witness, Joseph Aceto, said Barrett did participate in the robbery. The jury believed Aceto and not Barrett. Barrett was convicted and sentenced to twenty years of imprisonment. Barrett promptly filed post-trial motions for acquittal and a new trial, which the district court denied. See United States v. Barrett, 598 F.Supp. 469 (D.Me.1984). His conviction was affirmed on direct appeal. See United States v. Barrett, 766 F.2d 609 (1st Cir.1985).

In 1990, Barrett filed a petition under § 2255 and then amended it. The amended petition asserted claims under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for the failure to disclose various documents, including a transcript of a government interview with Aceto. In a reply brief, Barrett tried to characterize the failure to disclose the transcript as a violation of the Jencks Act, 18 U.S.C. § 3500, as well as a Brady violation. The district court dismissed the petition without addressing the belated and informal Jencks Act claim. See Barrett v. United States, 763 F.Supp. 658 (D.Me.1991). This court affirmed the dismissal. See Barrett v. United States, 965 F.2d 1184 (1st Cir.1992).

This appeal, Barrett's third trip to this court for review of the 1984 conviction, concerns his efforts to raise anew the Jencks Act claim that was adverted to in the reply brief. However, since Barrett's 1990 petition was decided, Congress has enacted AEDPA, which places statutory restrictions on the filing of second or successive petitions under § 2255. Cutting through the procedural morass presented, we find three essential questions for us to resolve:

1. Does Barrett present a "second or successive" § 2255 petition, as that term is defined under the 1996 AEDPA amendments, and, if so, is his petition barred because it does not meet AEDPA's gatekeeper requirements?

2. Does Barrett's claim fall within the savings clause of § 2255, which permits a petitioner to seek relief under § 2241 if § 2255 is "inadequate or ineffective to test the legality of his detention"?

3. Does the All Writs Act nonetheless provide Barrett with a vehicle for raising his Jencks Act claim?

The answer to the first question is yes, and the answer to the second and third questions is no. We affirm the dismissal of Barrett's petition.

II

We describe in detail the travel of the issues to this court. In June of 1990, Barrett filed a pro se petition under § 2555 requesting that his sentence be vacated or set aside. The court appointed counsel, different counsel than in the instant petition. Five months after Barrett's petition was first filed, he filed an amended habeas petition, with counsel's assistance, alleging that the government had failed to disclose certain evidence. Among that undisclosed evidence was a transcript of an interview conducted in Arkansas by an FBI agent with Aceto, the chief prosecution witness. This interview took place in the presence of the prosecuting Assistant U.S. Attorney ("AUSA") on January 26, 1984, about two months before Barrett's trial. Before the trial, the government promised to disclose all prior statements by Aceto and provided Barrett with a redacted summary of the interview on FBI Form 302. But the government did not provide a copy of the transcript, and that failure underlies the case before us.

Barrett's 1990 amended § 2255 petition alleged that the failure to provide the interview transcript violated Brady. On January 4, 1991, the government responded to the amended petition; included in its response was an affidavit from the AUSA who was present at the interview--a different AUSA than represents the government before us now. The AUSA stated that the interview was conducted to assist the FBI in its investigation of two other suspected participants in the bank robbery, who were fugitives at the time and were considered extremely dangerous. According to the AUSA, since security concerns were very high he "never considered the sensitive investigative information in the transcript as discoverable."

On February 19, 1991, Barrett filed "Plaintiff's Motion for Leave to File a Brief Reply Memorandum," which asserted that "several legal arguments and factual assertions raised by the government ... require a response from plaintiff." After the district court granted this motion, Barrett filed a reply brief on February 22, 1991; this brief raised for the first time a claim that the failure to disclose the interview transcript violated the Jencks Act. Barrett did not seek to amend his § 2255 petition to add this claim, and the government did not respond to it.

On April 30, 1991, the district court dismissed the amended petition without mentioning the Jencks Act claim. The court did, however, extensively discuss the Arkansas interview transcript in order to determine whether a constitutional violation had occurred under Brady. See Barrett, 763 F.Supp. at 662-63. In arguing to the district court that the government's failure to produce the transcript made a constitutional difference, Barrett raised several specific purposes for which he would have used the transcript to impeach Aceto. See id. at 662. Applying the test set forth in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), which states that "a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial," id. at 678, 105 S.Ct. 3375, the court addressed each of these purposes and concluded, after careful analysis, that its "confidence in the outcome of the trial [was] not diminished in any respect," Barrett, 763 F.Supp. at 662-63. The court noted that "Aceto was thoroughly impeached by far more substantial means: his mental illness, inconsistencies between trial and previous testimony, his prior criminal behavior, and his agreement with the government. Yet the jury believed him." Barrett, 763 F.Supp. at 663 (footnote omitted).

After the district court issued this opinion, Barrett's counsel filed an unsigned and undated motion for reconsideration on the ground that the Jencks Act claim had not been addressed. That motion was stricken on June 6, 1991 for failure to comply with various applicable rules requiring counsel's signature. Two later motions for reconsideration based on the same issue were filed and denied.

On appeal to this court from the denial of the § 2255 petition, Barrett argued both the Jencks Act claim arising from the failure to disclose the interview transcript and various Brady claims. This court affirmed the dismissal of the Brady claims. See Barrett, 965 F.2d at 1188-92 & n. 15. As to the Jencks Act claim, this court held that the reply brief that first raised the claim to the district court was not properly characterized as a "traverse"; that the motions to reconsider were untimely under Federal Rule of Civil Procedure 59(e); and that, if the motions for reconsideration were considered Rule 60 motions, "petitioner would fare no better, since the district court orders denying the motions were never appealed." Id. at 1187-88 & n. 3. Accordingly, this court stated, "as a practical matter, petitioner's failure to raise the Jencks Act claim in a timely manner below preclude[d] effective appellate review on the merits." Id. at 1188.

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371 practice notes
  • Ramirez-Burgos v. United States, Civil No. 11–2040(DRD).
    • United States
    • U.S. District Court — District of Puerto Rico
    • December 23, 2013
    ...motion to vacate, raising claims regarding the same conviction or sentence, has been decided on the merits. United States v. Barrett, 178 F.3d 34 (1st Cir.1999). Matters that were or could have been decided on appeal may not be litigated in Section 2255 motions. Parrilla–Tirado v. U.S., 445......
  • López-Correa v. United States, CIVIL NO. 18-1930 (GAG)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • August 27, 2020
    ...a federal criminal statute may move to seek collateral review via writ of habeas corpus. See 28 U.S.C. § 2255 ; United States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999). Relief based on a "freestanding" actual-innocence claim, without any other constitutional violation, has yet to be decid......
  • U.S. v. Lopez, No. 07-35389.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 18, 2009
    ...courts that the meaning of "second or successive" is informed by the abuse-of-the-writ doctrine. See, e.g., United States v. Barrett, 178 F.3d 34, 42-44 (1st Cir.1999); James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002); Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir.2005); In re Cain, 137 F......
  • Trenkler v. U.S., No. 07-1678.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 1, 2008
    ...second or successive habeas petition and was foreclosed on that basis. See 28 U.S.C. § 2255(h); see also United States v. Barrett, 178 F.3d 34, 42-45 (1st Cir.1999). Given this reality, the district court had only two choices: either dismiss the recharacterized petition or transfer it to th......
  • Request a trial to view additional results
371 cases
  • Ramirez-Burgos v. United States, Civil No. 11–2040(DRD).
    • United States
    • U.S. District Court — District of Puerto Rico
    • December 23, 2013
    ...motion to vacate, raising claims regarding the same conviction or sentence, has been decided on the merits. United States v. Barrett, 178 F.3d 34 (1st Cir.1999). Matters that were or could have been decided on appeal may not be litigated in Section 2255 motions. Parrilla–Tirado v. U.S., 445......
  • López-Correa v. United States, CIVIL NO. 18-1930 (GAG)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • August 27, 2020
    ...a federal criminal statute may move to seek collateral review via writ of habeas corpus. See 28 U.S.C. § 2255 ; United States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999). Relief based on a "freestanding" actual-innocence claim, without any other constitutional violation, has yet to be decid......
  • U.S. v. Lopez, No. 07-35389.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 18, 2009
    ...courts that the meaning of "second or successive" is informed by the abuse-of-the-writ doctrine. See, e.g., United States v. Barrett, 178 F.3d 34, 42-44 (1st Cir.1999); James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002); Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir.2005); In re Cain, 137 F......
  • Trenkler v. U.S., No. 07-1678.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 1, 2008
    ...second or successive habeas petition and was foreclosed on that basis. See 28 U.S.C. § 2255(h); see also United States v. Barrett, 178 F.3d 34, 42-45 (1st Cir.1999). Given this reality, the district court had only two choices: either dismiss the recharacterized petition or transfer it to th......
  • Request a trial to view additional results

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