USCA1 Opinion

January 25, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

____________________

No. 95-1186

UNITED STATES,

Appellee,

v.

MICHAEL BARNETT,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
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____________________

Michael Barnett on brief pro se.

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Donald K. Stern, United States
_______________

Attorney, and Michael D. Ricciu

_________________

Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
__________

district

Pro se defendant Michael

___ __

court order

that summarily

Barnett appeals a

denied his

motion for

relief from his sentence under 28 U.S.C.

convicted of three offenses

in a

2255.

Barnett was

arising out of his participation

conspiracy to manufacture methamphetamine.

See United
___ ______

States v. Barnett, 989 F.2d 546 (1st Cir.), cert. denied, 114
______
_______
_____ ______

S. Ct. 148

years'

filings

(1993).

was sentenced to

imprisonment.

alleged

that

improper application

claimed

He

that

his

Barnett's

motion

his sentence

was

a total of

and

the

supplemental

result

of the Sentencing Guidelines.

sentence

violated

the

thirty

Double

of an

He also

Jeopardy

Clause.

We have thoroughly reviewed

the record and the parties'

briefs

on appeal.

We

conclude that

wholly

lacking in

merit

and that

Barnett's claims

his motion

are

was properly

denied.

Briefly, neither of Barnett's

under 28 U.S.C.

his procedural

claims is cognizable

2255 unless Barnett shows "cause" to excuse

default

and

prejudice

resulting

alleged errors, or

that the failure

will

fundamental miscarriage

result in

Levasseur v.
_________

Coleman
_______

Pepe, 70 F.3d
____

to consider his

187, 192 (1st

showing.

the

claims

of justice.

See
___

Cir. 1995)(citing

v. Thompson, 501 U.S. 722, 750 (1991)).

________

failed to make either

from

Barnett has

Barnett's claim that

he did

not possess

the 50 kilogram container

part of the

conspiracy appears to be frivolous where Barnett

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of pseudoephedrine as

admitted that he was the "chemist" for the conspiracy and his

codefendant was recorded

ingredients to

saying that he and his

make 40 pounds

the contention has

obvious or strong

of methamphetamine.

some merit, it

cannot be said

that counsel's failure to

amounted to ineffective assistance.

U.S. 745, 750-54

chemist had

Even if

to be

so

raise the point

See Jones v. Barnes, 463

___ _____
______

(1983)(counsel has no

duty to raise

every

nonfrivolous issue requested by defendant).

Jeopardy claim is also meritless.

conviction required proof of

Barnett's Double

As each of his counts

an element that the

of

others did

not, his sentence does not violate the Double Jeopardy Clause

under the familiar Blockburger test.

___________

On appeal,

requires

term.

Barnett argues that U.S.S.G.

that he

be resentenced

to a

We have considered this argument,

made below, because

submitted his

2D1.11

2255 motion.

2D1.11 (1994)

substantially lesser

although it was not

was not retroactive when Barnett

We conclude that this guideline

does not entitle Barnett to any relief from his sentence.

the contrary, Barnett

offense level under

would have

been subject

2D1.11, comment. n. 3.

to the

To

same

Accordingly, the

judgment of the district court is affirmed.

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