USCA1 Opinion

May 19, 1993

[NOT FOR PUBLICATION]

____________________
No. 92-2329
RICHARD A. NAZZARO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Cyr, Circuit Judges.
______________

____________________

Richard A. Nazzaro on brief pro se.

__________________
A. John Pappalardo, United States Attorney, and Alexandra Lea
__________________
______________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
___________
former

police

officer

Commission (MDC),
petition

Petitioner Richard
with

appeals

under 28 U.S.C.

the

A.

Nazzaro,

Metropolitan
denial

of

District

from

the

his

third

2255

to vacate his sentence.

We

affirm.
I.
_
Petitioner was
conspiracy to commit
counts

1979

mail fraud,

of perjury, 18 U.S.C.

concerned the
others

convicted in 1988 of

alleged

for

the

1623.

371, and

by

petitioner

civil service promotion

position

of

two

The conspiracy charges

illegal purchase

of copies of two
exam

18 U.S.C.

two counts of

sergeant

and

and

exams -- a
a

1983

lieutenant's exam.
petitioner
relating

had

the

three

and

given false

grand

jury

to these

considered
barred

Counts

two

exams.

two issues

-- were

and were petitioner's

grand jury

judgment
exam;

On

charged

that

testimony in

1986

his direct

the conspiracy

its inquiry.

appeal,

we

counts time-

allegedly false

material to

except as to the

four

statements to

We

affirmed the

first count relating

to the 1979

we determined that prosecution of this count was time-

barred.

United States v. Nazzaro, 889 F.2d 1158, 1161, 1165

_____________
_______

(1st Cir. 1989).

We
discussion:

also

rejected three

other issues

with little

(1) whether the jury instructions concerning the

perjury counts were erroneous; (2) whether the district court

had

abused its

request that

the

discretion in
court

determine whether the

to a
and

newspaper article
different crimes;

not acceding

conduct

to petitioner's

individual

voir

dire

unsequestered jurors had been

about a different
and

(3) whether

to

exposed

police department
the district

court

erred in
other

not admitting

in evidence petitioner's

"anecdotal" proof

of commendations

he

resume and

had received.

Id. at 1166-68.
___
On
counsel,

January

filed his

contended that

18, 1990,
first

2255

to Count One -- the

time, counsel

filed a motion

sentence under Fed. R. Crim. P. 35.

raised in

the

2255 petition,

sentence was excessive.

his

his

country

commendations from
exemplary.

Count One was

remaining counts.
for reduction

of

In addition to the claim

petitioner argued that

and his past service to

months later in March

se, filed a second

family required

served

1979 instance of

his

the

These motions were denied on January 22, 1990.

About two

now pro

he

He based his argument on the present

overcrowding in federal prisons

community.

it,

the jury could not have

impartial decision concerning the

At the same

In

witnesses" at his

Because we held, on appeal, that

time-barred, petitioner claimed that

made an

represented by

petition.

the testimony of "numerous

trial had related only

mail fraud.

petitioner,

Rule 35 motion.

his presence and

in

the

1990, petitioner,

army,

work and that

He argued that

support, that
that

he

had

his conduct at

he had
received

prison was

He also suggested that his sentence was excessive

-3-

and

not in line with

the Sentencing Guidelines.

The court

denied this motion on June 13, 1990.

Petitioner's second

2255

motion was filed on the

same day and raised three grounds for relief:

had had

insufficient time

(PSI) in violation

to review the

(1) petitioner

Presentence Report

of Fed. R. Crim. P. 32

and had signed it

"under protest"; (2) his four-year sentence was excessive and

violated

"accepted"

guidelines

for

petitioner's due process rights

sentencing;

and

(3)

had been violated because he

was indicted only for perjury concerning testimony before the

grand jury in 1986 when he

had been asked the same questions

and had given the same answers before a second

grand jury in

1988.
After briefing
denied the

by both

sides, the

district court

2255 motion on January 23, 1992.

It held that a

review of the sentencing hearing revealed that petitioner had

had an adequate opportunity to object to
court

addressed petitioner's

signature

on the

government's

PSI, that

comments

statement,
he disagreed

which,

before the district court.

the PSI.

he claimed,

Next, the

written above
with some
had

never

his

of the
been

The court ruled that this was not

a sufficiently particular charge that required the sentencing

judge

to make specific

findings concerning disputed factual

allegations.

As for his sentence, the court pointed out that

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it was

within the limits

set by

law.

Finally, the

court

concluded that petitioner's due process claim was meritless.

This brings us to the
on February

6, 1992

--

present

2255 motion, filed

approximately two

weeks after

the

dismissal of the second petition.

In this motion, petitioner

claims

violated

that

the district

rights when it did

his

conviction

concerning this

court

his due

not alter his sentence after

on

Count

One.

He

process

we reversed

claims

that testimony

count "permeated" the entire

trial and that

sentencing was "heavily weighted" towards the conduct charged

in

Count

One.

sentences

were

necessarily

He
to

acknowledges,
run

however,

concurrently,

the

that
court

as

the

did

not

have to change the length of his sentence.

Yet,

he maintains, the stigma still remains.

Petitioner also asserts that his due process rights
were violated when the prosecutor asked the defense witnesses

about

their

suspension

knowledge

concerning

petitioner's

from his job as a result of an alleged fraudulent

insurance claim.

Petitioner avers that

the insurance claim

issue was irrelevant, erroneous and misleading.

use of

temporary

this improper

character evidence by

petitioner states,

directly resulted

guilt.

concludes that

Thus,

he

The repeated

the prosecutor,

in the finding

the prosecutor's

of his
actions

cannot be characterized as harmless error.

-5-

Petitioner's
are that

he was

trial and on

second and

third grounds

denied effective assistance

appeal.

First, he asserts that

for relief

of counsel

at

it was "common

knowledge" at trial that counsel had Lyme's disease for which

he

was being

antihistamines
side effects

treated.

The treatment

which, according

to

included the

use of

petitioner, can

induce

such as cognitive dysfunction,

drowsiness.

This, he

maintains,

affected

performance.

Second,

petitioner

alleges

memory loss and

his attorney's
that his

trial

counsel

"carelessly"

defense

witness

allowed

about

the

the

prosecutor

"misleading"

Finally, petitioner asserts that

to

ask each

insurance

issue.

trial counsel failed in his

general duty to make sure that evidence of petitioner's

character

was

presented to

counsel,

petitioner

the

charges

jury.
that

As
he,

good

for

appellate

too,

provided

constitutionally defective assistance when he failed

to file

a timely motion for a new trial.

The government filed a

response in which it argued

that appellant had abused the writ.

short

order, dismissed

petitioner's

The district court, in a

2255

motion.

This

appeal ensued.
II.
__
Rule 9

of the

Rules Governing Proceedings

in the

United States District Courts under Section 2255 provides:

(b)
(b)

Successive motions. A second or

Successive motions.
___________________
successive motion may be dismissed if the
-6-

judge finds that it fails to allege new

or different grounds for relief and the
prior determination was on the merits or,
if new and different grounds are alleged,
the judge finds that the failure of the
movant to assert those grounds in a prior
motion constituted an
abuse of
the
procedure governed by these rules.
In McCleskey v. Zant,
_________
____
Supreme
courts

Court held
should

applies
Sykes,
_____

use

to cases
433

that in
the

111 S. Ct. 1454

cases of

U.S.

72

"abuse of

cause-and-prejudice

of procedural
(1977).

once

the writ,"

standard

default, see
___
Thus,

(1991), the

that

Wainwright v.
__________
the

government

satisfies its burden by first pleading the existence of abuse

of the writ, as it did here,
to

establish cause for

petitions the
and

failing to

grounds presented in

prejudice therefrom.

petitioner
whether

the burden shifts to petitioner

be

earlier habeas

the subsequent

See id. at 1470.

___ ___

must demonstrate that

it

raise in

petition

To show cause,

some "external impediment,

government interference

or

the

reasonable

unavailability of the factual basis for the claim, must

prevented [him] from raising the claim."
It is
relief --

plain

that the

that petitioner's

district court

have

Id. at 1472.
___
first

ground

for

should have changed

his

sentence after this court reversed petitioner's conviction on

Count One -- was
opinion
not have

in 1989.

available to appellant after we

Petitioner

pursued this

offers no reason

claim in

one of

issued our
why he could

his earlier

2255

-7-

motions.

Thus, he has not

established the requisite "cause"

under McCleskey.
_________
The

same can

be

counsel provided inadequate

for Lyme's disease and
was deficient when
new trial.

said for

the

assistance due to

that appellate counsel's

he failed to make

his treatment
performance

a timely motion for

his

2255

motion that

trial counsel's

treatment was known at the time of trial.

actions of

file

trial

As for the first allegation, petitioner candidly

admits in

any

claim that

his appellate

medical

In relation to the

counsel, petitioner fails

to give

indication that he was unaware of the alleged failure to

a new

reasons

trial

motion.

Thus,

why these issues could

previous

we do

not perceive

not have been

any

raised in the

2255 motions.
This leaves petitioner's claim that trial counsel's

performance

was inadequate because he

did not object to the

questions concerning the allegedly false insurance claim.

On

appeal, petitioner argues that he, in fact, based the present

2255 motion on
of

the

Boston

"new evidence."
Municipal

This evidence is the order

Court, dated

November

6,

reversing the decision of the MDC to suspend petitioner.

court

found

that the

proper procedure
The

Suffolk

MDC's

and in

action was

excess of its

Superior Court

affirmed

taken

1991,
The

without the

statutory authority.
on

August 25,

1992.

-8-

Petitioner

essentially

claims

that

this

information

was

previously unavailable to him.

Although superficially appealing,
to

establish "cause"

McCleskey, the
_________
had

not abused

habeas petition.

within the meaning

the above
of McCleskey.
_________

fails
In

district court determined that the petitioner

the writ

when he

filed his

The court relied on the

time the petitioner had filed his first

second federal

fact that, at the

federal petition, he

had been unaware of the existence of a signed statement by an

individual who was

in the

McCleskey, 111
_________

Ct.

S.

jail cell

at

1460.

next to
This

petitioner's.

statement,

which

recounted pretrial jailhouse conversations, had been given to

the

police

before

petitioner's

petitioner only one month

habeas

petition.

This

trial

but

released

prior to the filing of

individual

had

to

his second

testified for

prosecution at petitioner's trial; he stated

the

that petitioner

had told him that he (petitioner) had committed the crime.

Also,

the district court found that the petitioner

was unaware, at the time of the first habeas petition, of the

identity of one of the jail officials.
at the hearing on the
the witness may

Id.
___

This individual,

second habeas petition, testified that

have intentionally been

placed in the

cell next to petitioner's.

The Supreme Court held:
That [petitioner] did not possess or
could
not
reasonably have
obtained
-9-

certain evidence fails to establish cause

if other known or discoverable evidence

jail

could have supported the claim in any

event. "[C]ause . . . requires a showing
of some external impediment preventing
__________
counsel from constructing or raising a
claim."
Id. at 1472 (citation omitted).
___
Here petitioner

possessed "a sufficient

basis" to

allege the claim concerning the insurance matter in either of

the

prior

2255 motions.

This is highlighted by petitioner

himself when he

points out,

that, at trial,
________

he had

attorney that the

incorrectly and

in the present

2255

specifically "made it

known to

issue of the insurance claim

damaging [sic]."

motion,
his

was depicted

Since the time

of trial,

then, petitioner knew that the insurance fraud claim was,

least in his eyes, untrue.
to

at

As such, there was no impediment

__

the presentation of the claim;

the state court decisions

are more properly characterized as "evidence discovered later

[which] might also have supported or strengthened the claim."
See id. at 1472.
___ ___
The
shown

that

only inquiry
a

left is

whether

"fundamental miscarriage

of

petitioner has
justice"

result if his present claims are not entertained.

1470.
applies

The
only

McCleskey
_________
to

a "narrow

constitutional violation
of

Court emphasized
class

of

probably has caused

one innocent of the crime."

Id.

See id. at
___ ___

that this
cases"

would

standard

in which

"a

the conviction

Petitioner must make a

___

-10-

"`colorable showing of factual innocence'" to meet this test.

See
___

id. at 1471 (quoting

___

Kuhlmann v. Wilson,
________
______

477 U.S. 436,

454 (1986)).
Although

petitioner does not directly address this

question, he generally argues that

of

the alleged

devastating."
government
charge

insurance fraud
Further,

the use by the prosecutor

issue was

"prejudicial and

petitioner suggests

that when

the

pursued Count One at trial, it was aware that the

was time-barred.

By nonetheless presenting evidence

concerning the 1979 examination, the government "deliberately

deceived the court and jury. . .

."

It did so, according to

petitioner, because "this illegal charge was the only hope of

prejudicing the

jury to find [petitioner]

guilty."

Without

Count One, petitioner asserts, the government had no case and

would have been forced to drop the other charges.
This is insufficient to satisfy the
justice

standard.

Petitioner's

claims that

miscarriage of
without Count

One, there would have been no case and that, in any event, he
would have been found
conclusory in
opinion

of

not guilty, are allegations

nature.

Petitioner's

the government's

characterizations

case do

not

"colorable showing of factual innocence."

has not

made, on direct appeal

sufficiency

States, 967 F.2d

______

come close

and
to a

Indeed, petitioner

or in any of

of the evidence claim.

which are

his motions, a

See Andiarena v. United

___ _________
______

715, 719 (1st Cir. 1992) (per

curiam).

In

-11-

the absence of more

factual specificity, we cannot

say that

the ends of justice were not served.

For the

foregoing reasons, we

affirm the district

______

court's decision to dismiss petitioner's third petition under

2255.

-12-