U.S. v. Pellerito, 92-1159
| Decision Date | 20 July 1992 |
| Docket Number | No. 92-1159,92-1159 |
| Parties | NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. UNITED STATES OF AMERICA, Plaintiff, Appellee, v. Guiseppe PELLERITO, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Robert W. Odasz on brief for appellant.
Daniel F. Lopez-Romo, United States Attorney, Robert S. Mueller, III, Assistant Attorney General, Mary Lee Warren, Bruce A. Pagel, Hope P. McGowan, and Marietta I. Geckos, U. S. Department of Justice, on brief for appellee.
Before Selya, Cyr, and Boudin, Circuit Judge s.
Giuseppe Pellerito filed a petition in the district court, pursuant to 28 U.S.C. § 2255, to vacate his earlier guilty plea in a drug conspiracy case. The gist of his claim was that his plea had been induced by ineffective assistance of counsel. The district court, having heard and rejected similar arguments by Pellerito three years ago, denied the petition without an evidentiary hearing, and Pellerito appeals. We affirm.
The background facts can be stated briefly. Together with more than 30 co-defendants, Pellerito was indicted in 1988 for conspiring to distribute heroin as part of a major drug distribution ring. Many defendants pled but Pellerito and one co-defendant went to trial on June 6, 1988. On the following day, Pellerito reached agreement with the government and entered a guilty plea to the single count charged against him, and his co-defendant entered a guilty plea on June 8. Pellerito's decision was prompted in part by government evidence that threatened Pellerito with a possible life sentence; the plea agreement capped his exposure at 20 years with a promised recommendation by the prosecutor of 18 years.
Eight weeks later, long after the jury had been discharged and the government had released its witnesses, Pellerito (now represented by new counsel) filed a motion prior to his sentencing seeking to withdraw his guilty plea. Fed. R. Crim. P. 32(d). Pellerito urged as the basis for withdrawing his guilty plea that Ivan Fisher, his trial counsel until shortly before the guilty plea, had been inadequately prepared, and that Emanuel Moore, who took over the defense shortly before trial, had lacked time to prepare. After hearing testimony from both attorneys among others, the district judge denied the motion and later filed an extensive opinion. United States v. Pellerito, 701 F. Supp. 279 (D.P.R. 1988). Pellerito was sentenced to 18 years in prison.
Pertinently, in its decision the district court found that Fisher and another lawyer who worked with him on the case had not been shown to be inadequate: they had devoted time to preparing the case, had filed motions, and had conferred with Pellerito on a number of occasions. As for Moore, he had entered the case only shortly before trial at Pellerito's own request after Pellerito sought to replace Fisher, but Moore was an experienced criminal trial attorney, had a former United States Attorney as local counsel and had some prior familiarity with the case. Moore had also assured the trial court that he was ready for trial. On appeal this court affirmed the district court's refusal to allow withdrawal of the guilty plea by Pellerito. United States v. Pellerito, 878 F.2d 1535 (1st Cir. 1989).
On July 10, 1991, the present section 2255 action was filed, Pellerito being represented by yet another attorney. In substance, Pellerito now claims that both Fisher and Moore provided inadequate representation and that this circumstance vitiated his guilty plea. Pellerito argues for the first time that Fisher was himself under investigation for federal tax law violations at the time he represented Pellerito; and this, it is alleged, distracted Fisher from preparation and even created a conflict of interest. Moore himself has now furnished an affidavit asserting that, on reflection, he believes that he was not adequately prepared for trial in June 1988. Pellerito also suggests (in an argument not made to the district court) that Mario Malerba, counsel for Pellerito's co-defendant, assisted Pellerito in connection with the plea agreement but had a conflict of interest never properly examined. In an unpublished opinion, the district court denied the section 2255 motion without an evidentiary hearing, and Pellerito now seeks review in this court.
At the outset, the government contends that the merits need not be reached. It says that Pellerito's present motion merely reasserts a claim of ineffective assistance of counsel that this court reviewed and rejected in 1989 on Pellerito's prior appeal. Correctly, the government points out that an issue previously settled on direct appeal cannot be revived by a collateral attack under section 2255. United States v. Butt, 731 F.2d 75, 76 n.1 (1st Cir. 1984); Dirring v. United States, 370 F.2d 862, 864 (1st Cir. 1967). On the other hand, this bar obviously does not apply to a new issue and in addition the bar may be relaxed in certain circumstances, notably where a defendant relies upon substantial new evidence that he had no prior opportunity to present even though it concerns an issue already addressed. See, e.g., Giacalone v. United States, 739 F.2d 40, 42-43 (2d Cir. 1984); Argo v. United States, 473 F.2d 1315, 1317 (9th Cir.), cert. denied, 412 U.S. 906 (1973).
At least two of Pellerito's three main points arguably pass muster under these cases. The attack on Fisher, although the ineffective assistance of counsel label is unchanged, is now supported with new facts concerning the tax investigation of Fisher himself. By contrast, the Moore affidavit adds almost nothing of importance and, standing alone, would warrant a summary denial of the motion; but the charges against the two lawyers overlap in some measure and, to present a complete picture, it is convenient to address them both. As for Malerba, Pellerito's claim appears to be newly conceived and was not discussed in the earlier appeal. We turn therefore to the question whether any of the allegations warrants an evidentiary hearing and conclude that none does.
It is familiar law that an evidentiary hearing is not automatically required for a section 2255 petition. Rather, the petitioner needs to allege facts that, if established by evidence, would justify relief. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985). . What facts would warrant relief is, of course, a matter of substantive law. Where a collateral attack is made upon a guilty plea based on ineffective assistance of counsel, the Supreme Court has instructed us that two things need to be shown: that counsel's representation fell below an objective standard of reasonableness, and that there is a reasonable probability that "but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
Starting with Pellerito's charges against Fisher, there was indeed a federal investigation of him that...
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