USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 97-1398

SHMUEL DAVID,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

_________________________

Peter Goldberger, with whom Pamela A. Wilk was on brief, for

________________
______________
appellant.
Robert L. Peabody, Assistant
__________________

United States

whom Donald K. Stern, United States Attorney, was

________________
appellee.

Attorney, with

on brief, for

_________________________

January 27, 1998

_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________

Some four years ago, petitioner-

appellant

pursuant

Shmuel David filed a motion for post-conviction relief

to

eventually

hearing.

28 U.S.C.

denied

2255

(1994).1

the petition

David appeals.

The

without holding

district

court

an evidentiary

We affirm.

I.
I.
__

Background
Background
__________

On direct appeal, we described the petitioner's case as

"involv[ing]

web's center,"

a spider

web of

United States
_____________

Cir. 1991) (David I), and

_______

on a myriad of charges.

out at length

drug dealing,

v. David, 940
_____

with David

F.2d 722,

at the

726 (1st

we proceeded to affirm his convictions

Inasmuch

in that opinion, we

as the predicate facts are set

offer only a pr cis

of those

events to set the stage for the instant appeal.

In David I,
_______

1987, and 1988,

persons

the government charged that,

during 1986,

David, thirteen codefendants, and

various other

engaged in extensive cocaine trafficking.

Mirroring the

prosecution's

theory that

suppliers transmogrified the

shift

from

domestic

to

foreign

operation, the indictment described

____________________

1Congress

subsequently

enacted

the

Antiterrorism

and

Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,

110 Stat.

1214 (codified

in scattered

sections of

The new law took effect on April 24, 1996.

determined,

in

general, that

AEDPA

28 U.S.C.).

The Supreme Court has

does not

apply

to habeas

petitions that were pending on AEDPA's effective date.

See Lindh
___ _____

v. Murphy, 117 S. Ct. 2059, 2067-68 (1997) (discussing amendments

______
to habeas

procedures in cases

brought under 28 U.S.C.

see also Martin v. Bissonette, 118 F.3d 871,

___ ____ ______
__________
(applying

Lindh).
_____

We believe

that

2254);

874 (1st Cir. 1997)

this rationale

applies to

section 2255 motions

petitions).

(which are, after all, a

Thus, we measure

species of habeas

the petitioner's case against pre-

AEDPA benchmarks.

two conspiracies:

one beginning

in 1986 and ending in

March of

1988, and the other taking up where the first left off and ending

later that

year.

Following a nine-week

petitioner guilty on

he:

(a)

twenty-two counts,

engaged in a continuing criminal

trial, a jury found the

including charges

that

enterprise (CCE), see

___

21 U.S.C.

U.S.C.

848; (b)

participated in both conspiracies,

846; (c) possessed

see 21
___

cocaine with intent to distribute on

several occasions, see 21 U.S.C.

___

841(a)(1); and (d) facilitated

numerous drug transactions by using the telephone, see 21

___

U.S.C.

843(b).

At

employing

grouped

the

disposition

the

district

court,

the January 1988 edition of the sentencing guidelines,

related offenses,

drug-quantity evidence

USSG

hearing,

see
___

to fix

2D1.1; added two levels

USSG

3D1.1(a);

a base offense

used

level of

available

36, see
___

for possession of a firearm during

the commission of an offense, see USSG

___

2D1.1(b); added four more

levels for the petitioner's leadership role, see USSG

___

subtracted

3E1.1.

within

two levels for acceptance of responsibility, see USSG

___

In the end,

the

the district court sentenced the petitioner

computed

guideline

thirty-year incarcerative term

possession

3B1.1; and

counts and

remaining charges.

sentencing

on the CCE and

shorter

periods

of

range,

imposing

various "grouped"

immurement

on

the

The court designated all the sentences to run

concurrently.

Represented by new counsel, David appealed.

the

conspiracy

convictions

as

violative

of

the

We vacated

multiple

punishments

prong of

the

Double

Jeopardy

Clause,

given

conviction and sentence on the encompassing CCE count.

I, 940 F.2d at 738

_

F.2d 148,

the

See David
___ _____

(citing United States v. Rivera-Martinez, 931

_____________
_______________

152-53 (1st

Cir. 1991)).

In all other

respects, we

affirmed the convictions and the corresponding sentences.

On

petitioner

January

7,

1994,

while

retained fresh counsel

conviction relief in

responsibility

for

still

and filed a

the district court.

the

motion

in

place

incarcerated, the

motion for post-

Judge Gertner assumed

of

the

late

Judge

McNaught,

sentence.

not

who

filed a

presided

over the

She ultimately denied it

deign to

beat, the

had

hold an

petitioner

changed counsel

denied.

The

and

had

imposed

on January 2, 1997, but did

evidentiary hearing.

motion for reconsideration

Judge Gertner also

trial

Without

again.

missing a

His new

on February 26,

lawyers

1997, which

petitioner appeals solely

from

the original denial of post-conviction relief.

II.
II.
___

Analysis
Analysis
________

The

below.

Two of

petitioner

advanced

these claims

three

related

sentencing calculations; one questioned

claims

to the

in the

propriety of

court

the

the firearms enhancement

and the second

offense.

The

questioned the upward adjustment for

remaining claim posited ineffective

role in the

assistance of

trial counsel, stemming not only from an alleged failure to raise

this

pair of

sentencing objections,

but

also from

an alleged

failure promptly to relay a potentially favorable plea bargain to

the petitioner.

On appeal,

David has not continued his campaign

against

the role-in-the-offense

challenge abandoned.

F.2d 1, 17

and

we deem

See, e.g., United States v. Zannino,

___ ____ ______________
_______

(1st Cir. 1990).

two claims.

adjustment,

He does, however, renew

that

895

the other

After a brief introduction, we address each of them.

A.
A.
__

Introduction
Introduction
____________

Section 2255

Rather, the statute

instances, namely, if

in

that

is not a

surrogate for a

direct appeal.

provides for post-conviction relief

the petitioner's sentence (1)

violation of the Constitution, or

in four

was imposed

(2) was imposed by a court

lacked jurisdiction, or (3) exceeded the statutory maximum,

or (4) was

otherwise subject to collateral attack.

See Hill v.
___ ____

United States, 368 U.S. 424, 426-27 (1962) (construing statute).

______________

The

catch-all fourth category includes only assignments of error

that reveal

"result[]

"fundamental defect[s]" which, if

in

irregularities

demands of

from

complete

that

are

cognizable

of

The burden is

Id. at 428.
___

constitutional

section

2255

circumstances" that make

2255 relief.

"inconsistent

fair procedure."

claims

miscarriage

or

claim

uncorrected, will

of

with

justice,"

the

rudimentary

In other words, apart

jurisdictional

must

reveal

nature,

make out a case

"exceptional

the need for redress evident.

on the petitioner to

or

See id.
___ ___

for section

See Mack v. United States, 635 F.2d 20, 26-27 (1st

___ ____
______________

Cir. 1980).

B.
B.

__

The Firearms Enhancement

The Firearms Enhancement
________________________

The

disposition

the

petitioner

asserts

(August 1, 1989),

that,

as

of

the guidelines did

the

date

of

not authorize

two-level sentence enhancement imposed by Judge McNaught for

the use of a firearm

an enhancement that tacked at least sixty-

seven

additional months

presents a bit

and

in

David's

of a moving target.

the court

increase only

onto

below,

David

sentence.

In his section

and that the two-level

claim

2255 motion

asseverated that

could have materialized if it

the CCE conviction,

This

two-level

were authorized for

firearms enhancement

was unavailable because the applicable sentencing guideline, USSG

2D1.5, did not make reference to it.

Having

interim,

secured yet a

the petitioner

reconsideration, and now

barely mentions section

around USSG

2D1.1.

initially told the

fourth set

recast his

of attorneys

argument in his

has come hard about.

in the

motion for

In this venue, he

2D1.5, but, rather, shapes

his argument

Paying very little heed to the fact that he

lower court that section 2D1.1

did not apply

at all, he now maintains that section 2D1.1

is the correct focal

point, but that it cannot support the enhancement.

We

caution.

approach

this

moving

target

It is well established that a

with

considerable

party may not unveil an

argument in the court of appeals that he did not seasonably raise

in the district court.

See United States v. Slade, 980 F.2d 27,

___ ______________
_____

30 (1st Cir. 1992); see also Singleton v. United States,

___ ____ _________
_____________

233, 240

(1st Cir. 1994)

(invoking this principle in

26 F.3d

a section

2255 case);

United States
_____________

v. Mariano, 983
_______

F.2d 1150,

1158 n.9

(1st Cir. 1993) (invoking this principle in respect to sentencing

issues).

To

petitioner's

apply the

the theory

that he

reconsideration.2

1187

n.3 (1st

here,

we

must

measure

the

current argument against that limned in his section

2255 motion and advanced

to

principle

See
___

before Judge Gertner, not

belatedly

surfaced in

Barrett v. United States,

_______
_____________

Cir. 1992);

by reference

his request

for

965 F.2d 1184,

Mackin v. City of Boston,

______
_______________

969 F.2d

1273, 1278-79 (1st Cir. 1992); In re Sun Pipe Line Co.,

_______________________

831 F.2d

22, 24

(1st Cir. 1987).

the argument

he

makes

Although the petitioner

today is

merely

more

contends that

sophisticated

statement of a refrain contained in his section 2255 motion, that

is

plainly

different.

not

the

case.

type.

two

arguments

are

markedly

Consequently, the newer version is by the boards.

The petitioner

court has

The

correctly reminds us that

discretionary power to

an appellate

override a forfeiture

of this

To justify deploying this seldom-used power, however,

the

newly emergent contention must be one that practically guarantees

the appellant's success.

forfeited argument is

See Slade,
___ _____

980 F.2d at 31.

considerably less than robust.

Here,

the

We explain

briefly.

The

firearms enhancement

____________________

about

which the

petitioner

2Even were we disposed to consider the argument

the petitioner's untimely

motion for

advanced in

reconsideration, we

could

not do so because the petitioner has not appealed from the denial
of that

motion.

See Barrett v.
___ _______

United States, 965

_____________

F.2d 1184,

1188 (1st Cir. 1992).

complains arose out of

drug courier

by the

a discrete set of facts.

name of

Filin, employed

confederates, tried to purloin a

In June 1987, a

by David

and his

shipment of cocaine by faking a

robbery.

The

petitioner

threatened

Filin

at

saw through

gunpoint

in

an

the

charade

attempt

to

and later

coerce

confession.

Under

the sentencing regime imposed by the guidelines,

the law in effect on the date of the disposition hearing governs,

absent ex post facto concerns.

__ ____ _____

See United States v. Harotunian,

___ _____________
__________

920 F.2d 1040, 1041-42 (1st Cir. 1990).

Hewing to this line, the

government defends the enhancement by pointing to the

USSG

2D1.1(b)(1)

that took

effect on January

version of

15, 1988.

That

guideline provided for a two-level upward adjustment if a firearm

"was

possessed

2D1.1(b)(1).

during

commission

of

the

offense."

USSG

The government concedes that "the offense" must be

an offense to which the guidelines attached, thus restricting the

enhancement in this case to the two drug distribution counts that

transpired in

this

1988, namely, counts 15 and

concession, the government

commission

of the offense"

conduct" guideline, which

certain

16.3

Notwithstanding

posits that the

phrase "during

requires reference to

in its 1988 iteration

the "relevant

indicated (with

exceptions not germane here) that an "offense" generally

____________________

3These
U.S.C.

counts,

841(a)(1),

conviction
enhancement.

each of
are

the

that are legally

The CCE

which
only

charged a

violation

post-guidelines

capable of supporting

sentencing paradigm

of 21

counts

of

the firearms

did not provide

for

such an enhancement, and the two conspiracy convictions have been

vacated.

is deemed

abetted

to include

by

commission

the

"all acts

defendant

. .

. committed

that

that, with respect to "grouped" offenses, see

___

the

1B1.3(a)(1), and

USSG

3D1.2(d), an

of conduct or common scheme or

plan as the offense of conviction," USSG

episode was part

scheme or plan

during

is deemed to include all "acts and omissions

that were part of the same course

Filin

and

occurred

of the offense of conviction," USSG

"offense" generally

or aided

1B1.3(a)(2).

of the same course

as the vignettes on

Since the

of conduct or common

which counts 15 and

16 were

premised, the government's thesis

runs, the petitioner possessed

the gun "during commission of the offense."

The

petitioner's

convoluted.

As

government

defines

phrase's

an

matter,

offense"

restricted

and does

basis, he argues,

general

"the

scope is

conviction

the

counter-argument

too

to

not include

he

specific

"relevant

Indeed,

effective

he

conviction

adds,

date of

since

to

the

which

the guidelines,

that

the

that

the

offense(s)

conduct."

of

On this

occur in the course of

the

gun use

and

more

firearm could not support

enhancement because that use did not

offense of

somewhat

maintains

broadly

the

his proven use of a

is

guidelines

took

it could

place

not

attached.

before

the

possibly have

occurred as part of such an offense.

After studying

the guideline provision, we

reject the

petitioner's hypothesis.

"the

offense,"

ascribed to

We

fairly read,

it by

conclude instead

bears

the government and

the

that the

phrase

broader interpretation

the district court.

Our

conclusion is grounded in the

the

language, structure, and theory of

sentencing guidelines, and it is

that the Sentencing

reinforced by an amendment

Commission adopted subsequent to

the events

at issue here.

See USSG App. C,

___

Amend. 394 (Nov. 1991).

That

amendment deleted the "during commission of the offense" language

from

section 2D1.1(b)(1)

and

thus confirmed

the

government's

interpretation of the guideline as extending to relevant conduct.

We

Amendment

do

not

394

revisionary

is

embrace the

inapposite.

amendments to the

which change

the law in

petitioner's

The

general

guidelines

rule

that

a substantive way

sentencing

suggestion that

retroactively

by

court

disadvantage.

See United States v. Rostoff,

___ ______________
_______

53 F.3d

By contrast, clarifying amendments

amendments

do

not

change

elucidate its intended meaning

the

law,

be applied

defendant's

(1st Cir. 1995).

which

but

that

is, amendments

cannot

to

is

which

398, 406

that is,

merely

can be freely used by sentencing

(or

sentence-reviewing)

courts

prospectively or retrospectively.

980 F.2d 60,

as

interpretive

See Isabel v.
___ ______

aids,

United States,
_____________

62 (1st Cir. 1992); United States v. Ruiz-Batista,

______________
____________

956 F.2d 351, 353-54 (1st Cir. 1992).

guideline amendment is

When determining whether a

revisionary as opposed to

clarifying, an

inquiring court must accord substantial respect to the Sentencing

Commission's view

on the subject.

See Isabel, 980

___ ______

F.2d at 62.

In effecting Amendment 394, the Sentencing Commission stated that

"[t]his

amendment clarifies that the provisions of

[incorporating as

relevant conduct all

10

1B1.3(a)(2)

acts which were

part of

the same course of conduct as the offense of conviction] apply to

the

adjustments

in

2D1.1(b)(1)."

The

characterization of Amendment 394 appears apt:

disambiguate

the

guideline provision

Commission's

it is designed to

and thereby

mitigate any

confusion caused by the original wording.

That is game,

worked

set, and match.

Because Amendment

394

no substantive change in preexistent law, a sentencing or

reviewing court may apply it retroactively.

See United States v.

___ _____________

LaCroix, 28 F.3d 223,

_______

227 n.4 (1st Cir. 1994);

Valencia-Lucena, 988 F.2d 228, 234

_______________

USSG

1B1.11(b)(2) (Nov. 1993).

The

Commission's

straightforward.

conduct"

in

enhancement).

district

n.4 (1st Cir. 1993); see also

___ ____

We do so here.

language

could

not

be

more

Amendment 394 makes it plain that the "relevant

provisions (such as

adjustments

United States v.
_____________

section

2D1.1(b)(1)

Accordingly,

court's use

section 1B1.3(a)(2)) apply

of a

(such

Amendment 394

as

the

to the

firearms

fully validates

"relevant conduct"

approach to

the

the

firearms enhancement.

The

persuasive.

permit the

petitioner's

fallback

position

He contends that, even if the

enhancement

when

a firearm

is

no

more

sentencing guidelines

was

used

during

pre-

guidelines

conduct "relevant"

conviction, his

gun use

incident (which

took place

course of conduct,

to a

does not so

in 1987)

qualify because

was not

common scheme, or plan that

15 and 16 (both of which

part of

offense of

the Filin

the same

underlays counts

focus on events that occurred in

11

of 1988).

post-guidelines

April

This contention

The petitioner

the

notes that his

time frame of

conduct underlying

the

two

enhancing

Based

the time

the

frame of

chronology,

gun use

occurred within

first conspiracy,

post-guidelines

on this

conduct

artificial distinction.

use of a firearm

the so-called

counts occurred within

conspiracy.

depends on an

drug

whereas the

distribution

the so-called

he theorizes

cannot be

second

that the

"relevant" to the

offenses of conviction.

The fallacy in this theory is that "a course of conduct

or common

sentencing

with, the

scheme

or

plan,"

as that

guidelines, is broader

definition of a

is

used

in

the

than, rather than coterminous

"conspiracy" as

used in the overall criminal law.

F.2d 399, 403

phrase

that term of

art is

See United States v. Wood, 924

___ _____________
____

(1st Cir. 1991); see also United States v. Spence,

___ ____ _____________

125 F.3d 1192, 1195 (8th Cir. 1997);

F.2d 624, 635

within the

within

(D.C. Cir. 1992).

same conspiracy,

the same course

sufficiently

to allow

"they are part of . .

1B1.3(a), comment.

more offenses

United States v. Boney, 977

_____________
_____

Thus,

whether or not enveloped

offenses may

of conduct as

a rational

______

qualify as

long as

factfinder

occurring

they are related

to conclude

. [an] ongoing series of offenses."

(n.9(B)).

to constitute

In

the same vein, "[f]or

part of a

common scheme

that

USSG

two or

or plan,"

they only need to "be substantially connected to each other by at

least one

common factor, such as .

purpose. . . ."

USSG

. . accomplices, [or] common

1B1.3(a), comment. (n. 9(A)).

12

This dichotomy makes

the

petitioner's

drug

trafficking

charged conspiracies, the

the

fact that, throughout

the indictment,

remained

at the

single purpose.4

prosecutor

the

a world of difference.

in

framing of the charges

two

his

an ongoing

separate

cannot obscure

the cocaine trafficking

petitioner and

center of

resulted

Although

principal

described in

accomplices

enterprise devoted

to a

The shift in the source of supply permitted the

to divide

the enterprise

into two

segments and

to

charge

some defendants

deviated

and

sale

accordingly,

from his main business:

of

petitioner's

cocaine

in

but

never

the acquisition, distribution,

specific

activities during 1986,

an ongoing series of offenses, the

the petitioner

region.

Because

the

1987, and 1988 constituted

district court did not err in

imposing the firearms enhancement.

C.
C.
__

Ineffective Assistance of Counsel

Ineffective Assistance of Counsel
_________________________________

Insofar as

the petitioner's ineffective

assistance of

counsel claim relates to the sentencing phase, it is

The petitioner received

an appropriate sentence, see

___

impuissant.

supra Part
_____

II(B), and, absent any prejudice, an ineffective assistance claim

cannot prosper.

1994).

of

See
___

Scarpa v. Dubois, 38 F.3d 1,

______
______

We turn, then, to

the

petitioner's

assistance

because

a consideration of the remaining tine

claim:

his

8-9 (1st Cir.

that

trial

he

counsel

received

failed

substandard

promptly

to

____________________

4The
ringleaders

David I
_______

record discloses

(Yehuda Yarden,

Joseph

that at

least

Zalmanovich, and

three other

Mordechai

Mizrahi) were involved with the petitioner in both conspiracies.

13

communicate a favorable plea bargain to him.

The genesis of this claim is as follows.

(or,

more

accurately,

in a

memorandum

accompanying

petitioner averred that he learned at some

favorable plea

communicated to

been made

offer

him until after

known to

would

have accepted

e.g.,

who

made

extended

the

by

it.

proposal,

government

its withdrawal.

when

conditions were attached to it, why

Had

ruminates, he

The averment

contains no

it

it), the

indeterminate time of

the

him, the petitioner

In his motion

was

but

not

the offer

"likely"

specifics,

tendered,

what

it was withdrawn, or how the

petitioner came to hear of it.5

Judge Gertner dismissed the

of hand.

On appeal, the

unsupported allegation out

petitioner argues only that

the judge

erred in

brushing aside

the allegation without

review the district court's denial of

abuse of discretion.

a hearing.

We

an evidentiary hearing for

See United States v. Garcia, 954

___ _____________
______

F.2d 12,

19 (1st Cir. 1992).

A prisoner who invokes section 2255 is not entitled

an evidentiary hearing as a

v. McGill,
______

to

matter of right.

See United States

___ ______________

11 F.3d 223, 225 (1st Cir. 1993).

Even if a hearing

is requested, a district court properly may forgo it when (1) the

motion

is

inadequate

on

its

face,

or

(2)

the

movant's

____________________

5In

his

papers,

the petitioner

merely

asserted

that he

"later learned that during pre-trial period the Government made a

plea offer .
months.

. .

in return

Counsel failed to

for a sentence

of 19

years and

adequately communicate this offer . .

. until the offer had been withdrawn.

[I]n all likelihood . . .

[he] would have accepted said plea offer."

14

allegations, even if true, do

the movant's

allegations "need not

they state conclusions

or

are

omitted);

not entitle him to relief,

`inherently

see also
___ ____

be accepted as

true because

instead of facts, contradict

incredible.'"

Rule

4(b),

Rules

Id.
___

at

the record,

225-26

Governing

or (3)

(citation

Section

2255

Proceedings.

To

progress

petitioner must do

an

evidentiary

hearing,

more than proffer gauzy

self-serving hints that

wings.

to

habeas

generalities or drop

a constitutional violation lurks

in the

A representative case is Machibroda v. United States, 368

__________
_____________

U.S. 487

(1962), in which

alleged

that

prosecutorial

his

the petitioner's section

guilty

promise.

plea

resulted

After the

trial

motion without

an evidentiary hearing

affirmed,

Supreme

the

petitioner's

motion

and

detailed and

specific."

Court

reversed,

possesses particular pertinence

at 495.

from

court

an

noting

of appeals

that

charges

In a pithy

unkept

dismissed the

and the court

affidavit contain

Id.
___

2255 motion

"[t]he

which

are

passage that

for present purposes, the

Court

cautioned

to

if

his

allegations are "vague, conclusory, or palpably incredible."

Id.
___

This

that a habeas petitioner is not automatically entitled

hearing

is true,

and

the

normally

should

Court wrote,

not

even "if

receive

the record

conclusively and expressly belie [the] claim."

Inferior courts routinely

standard

section

in determining

2255 motions.

the need

Allegations

15

does not

Id.
___

have applied the

for

one

Machibroda
__________

evidentiary hearings

that are

so evanescent

on

or

bereft

of detail

(and,

thus,

that they

corroborated

evidentiary hearing.

allegations were

or

reasonably be

disproved)

do

not

See Dalli v. United States,

___ _____
_____________

761 (2d Cir. 1974) (holding

refused to convene

cannot

that the district court

an evidentiary hearing when

"vague, indefinite and

investigated

warrant

an

491 F.2d 758,

supportably

the petitioner's

conclusory"); see
___

also
____

Amos v. Minnesota, 849 F.2d 1070, 1072 (8th Cir. 1988) (upholding
____
_________

the

denial of

an evidentiary

hearing

in a

section 2254

case

inasmuch as petitioner "offered only general allegations").

In this instance, the district court was not obliged to

credit

bargain.

the petitioner's threadbare

Who,

placed matters

bolstered the

forthcoming.

district

though

what, when,

of

the

court no names,

such details

absence of any

where, and

ascertainable fact

case for

To

allusions to a

how details

at

hearing,

contrary,

petitioner

dates, places, or

presumably were

within

particulars, the lower court

might have

issue and

an evidentiary

the

phantom plea

thus

have

but none

were

offered

the

other details, even

his ken.

In

the

justifiably treated

the petitioner's conclusory averments as mere buzznacking.

The

petitioner points

to

United States
_____________

v. Rodriguez
_________

Rodriguez, 929 F.2d 747 (1st

_________

Cir. 1991) (per curiam), as support

for his contention that, when

a section 2255 motion alleges that

defense counsel failed

to inform the defendant of

a plea offer,

the district court

must hold an evidentiary hearing.

provides David with cold comfort,

to admonish petitioners

That case

for the court there took pains

that, in order to

secure an evidentiary

16

hearing on

allegations.

such a claim,

they must tender more

See id. at 752.

___ ___

than conclusory

Rodriguez, unlike David, "provided

adequate

factual

specifications beyond

bald

therefore merited an evidentiary hearing.

To sum up,

speculation," and

Id.
___

the petitioner has put forth

less than the

bare minimum that is necessary to warrant an evidentiary hearing.

On this

gossamer showing, the

district court did not

abuse its

discretion in refusing to license a fishing expedition.

III.
III.
____

Conclusion
Conclusion
__________

We need

arguments are

By

go no

further.

The petitioner's

procedurally defective

like token, his

sentencing

and substantively

unparticularized claim

that a

infirm.

phantom plea

bargain lapsed for want of timely communication is much too vague

to demand an evidentiary hearing.

Hence, the court below did not

err in rejecting David's section 2255 motion.

Affirmed.
Affirmed.
________

17