USCA1 Opinion

June 27, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1484
WILFRED HART,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
Stahl, Circuit Judge.
_____________
____________________

Wilfred Hart, Junior on brief pro se.

____________________
Jay P. McCloskey, United States Attorney, and Margaret
__________________
__________
McGaughey, Assistant United States Attorney, on Memorandum of Law
_________
Support of Motion for Summary Disposition, for appellee.
____________________
____________________

Per Curiam.
___________

On

appellant Wilfred Hart,

March

23,

1987,

petitioner-

Jr. was indicted in the

District of

Maine on a fourteen-count third superseding indictment

alleged a

number of narcotics offenses

to possess with intent

this

court

affirmed

and two conspiracies

to distribute cocaine.

trial, Hart was convicted on June

1, 1988.

Hart's conviction

which

on

After

a jury

On May 16, 1991,

direct

appeal.

United States v. Hart, 933 F.2d 80 (1st Cir. 1991).

_____________
____
On

April

1,

pending, Hart filed

1991,

while

a petition to

Hart's

direct

appeal

vacate sentence under

was
28

U.S.C.
1991.

2255.

He

Although a

petition be
appeal,

filed an

amended petition on

magistrate

judge

recommended that

denied without prejudice because

the

district

recommendation.

On

May

court

took

15, 1991,

April 22,

no
and,

the

of the pending

action

on

after the

this
direct

appeal had been decided, on November 12, 1991 and December 2,

1991, Hart filed supplemental

2255 petitions.

12,

adopted a

1992, the

district court

recommended decision that all

dismissed.

Hart appeals.

On February

magistrate judge's

of Hart's

2255

petitions be

We affirm.

Issues already resolved on direct appeal

________________________________________

Of

the eight

issues

Hart raises

in

his brief,

five

already have been resolved by this court in the direct appeal

from Hart's conviction: (1) ineffective assistance of counsel

in

general,

id. at
__

82-83;

(2)

ineffective assistance

of

counsel on
trial

the specific ground

counsel

allegedly

would

contention

that

failed
have
the

cocaine, but incense,

arguments

to

on

two

produce

testified
substance

(5)

granting

motion

dealing

who

Hart's
was

not

4) Hart's two similar

conspiracy

so his
counts

double jeopardy, id. at 85__

that

entitled

of

single conspiracy,

different

Hart's argument

witnesses

support

Hart was

unconstitutionally placed him in

86; and

in

only a

court-appointed

several

id. at 83; (3 &

__

that there was

conviction

that Hart's

the district

"Motion

...

court,

by

Lack

of

on

Jurisdiction for Sentencing with Federal Question," in effect

ruled

that it had no

83-84.

Absent

here,

we will

jurisdiction to sentence

some extraordinary
not reconsider

Hart, id. at
__

circumstance not

by way

of

present

collateral review

arguments we have already resolved on direct

appeal.

United
______

States v. Butt, 731 F.2d 75, 76 n.1 (1st Cir. 1984).

______
____

Pending motions and grounds for relief

______________________________________

Turning to Hart's
that

the district

final judgment
appellate

remaining three issues, Hart

court was

without authority

against him, and

jurisdiction, because

that this court

a number of

alleges

to enter

is without

Hart's motions

-3-

and

grounds for

relief remained

undecided in

court when the district court dismissed his

The

district

expressly

denied

court's
all of

order
Hart's

"Hart's

remaining

motions

are

warrant

summary dismissal."

of

the district

2255 petitions.

dismissal,

however,

pending motions,

stating,

wholly
No

without

merit

motions remained

and

pending

thereafter.
Hart points

out that

neither the magistrate

judge nor

the district court expressly

discussed each and every ground

for relief set forth in his

2255 petitions.

argue that those

remain

grounds for relief that were

pending as well.

is final, and
relates,

even

particular

though

raised.

Absent some

contrary,

specifically

dismissal
reject all
discussed.

not mentioned

In fact, however, a dismissal order

effectively dismisses the

argument or

implicitly

He appears to

the

order

ground for
indication
order

is

arguments or

may

matter to which
not

mention

relief the
from

the

every

parties have
court

ordinarily

to

the

deemed

to

grounds for

Accordingly, nothing

it

relief not
in

Hart's

2255 petitions remained pending.

Failure to follow
2255 rules
______________________________

Hart next
it failed

claims that the district

to follow

Rule 3

of the

court erred because

Rules Governing

2255

-4-

Proceedings

in

states that

the clerk

enter [a

the

United

States District

of the

2255 petition] on

Courts,

district court "shall

which
. .

the docket in his office in the

criminal action in which was entered the judgment to which it

is directed."

According to

Hart's original

Hart, the clerk instead assigned

2255 petition

a separate number,

and did

not enter it on the docket of Hart's prior criminal action.

We

reject

this

claim

suggest that this clerical

him

in any

way.

provide no basis for

because Hart

says

nothing

to

error, if it occurred, prejudiced

Thus, Hart's

contentions, even

2255 relief.

if true,

Alleged perjury of government witnesses

_______________________________________

Finally,

Hart

alleges

that the

government

knowingly

permitted several of its witnesses to give perjured testimony

at his

trial.

Hart did

appeal, and he has

not raise this issue

said nothing to

in his direct

suggest that he did

not

know of the alleged perjury at the time of his direct appeal.

Hart

is therefore precluded from

raising the matter

in a

2255 context unless he can establish cause for the procedural

default and resulting actual prejudice.

Smith v. Murray, 477

_____
______

U.S. 527, 536 (1986); Velarde v. United States, 972 F.2d 826,
_______
_____________
827

(7th Cir. 1992); Murchu

______

v. United States,
_____________

926 F.2d 50,

53-54 n.4 (1st Cir.), cert. denied, 112 S.Ct. 99 (1991).

____ ______

-5-

Hart

has not put forward

any cause for

raise this issue on direct appeal.

the failure to

Although Hart has claimed

that

his appellate

counsel was

ineffective, Hart

number of issues pro se in his direct appeal, in

the issues raised by counsel.
In

addition, Hart

prejudice.

evidence to
should

addition to

Hart, supra, 933 F.2d at 82.

____ _____

has not

demonstrated any

Even assuming, arguendo, that

________

false, Hart has made

raised a

the testimony was

no showing, and the record

suggest, that the

resulting

contains no

government may have

known or

have known of any perjury, or that the government may

have induced it in any way.

entitled

to a

testimony.

new

trial based

Velarde,
_______

allegations

of

Consequently, Hart could not be

supra,
_____

perjured

on
972

the allegedly
F.2d

testimony

are

at

829.

perjured
Hart's

accordingly barred

because of Hart's procedural default.

Conclusion
__________

We

have considered

all of

Hart's other

arguments and

find them meritless.

The

district

court's

denial of

vacate sentence under 28 U.S.C.

Hart's

petitions

2255 is affirmed.
________

to

-6-