Académique Documents
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____________________
No. 92-1159
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
GUISEPPE PELLERITO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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____________________
Before
Selya, Cyr, and Boudin, Circuit Judges.
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Robert W. Odasz on brief for appellant.
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Daniel F. Lopez-Romo, United States Attorney, Robert S.
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Mueller, III, Assistant Attorney General, Mary Lee Warren,
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Bruce A. Pagel, Hope P. McGowan, and Marietta I. Geckos, U.
______________ ________________
___________________
Per Curiam.
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similar
the
case.
The gist of
The background
than 30
by ineffective
arguments by
petition
Pellerito appeals.
with more
vacate his
assistance of counsel.
denied
2255, to
rejected
28 U.S.C.
without
Pellerito
an
three
and
years ago,
evidentiary hearing,
and
We affirm.
facts can
be stated briefly.
Together
indicted in
a major
drug
distribution ring.
following
day,
Pellerito
government
and entered
reached
a guilty
1988.
agreement
plea to
On the
with
the single
the
count
charged against
him, and
a guilty
plea on June 8.
20
the prosecutor of 18
years.
Eight
weeks
discharged and
Pellerito
later,
long
after
the government
(now represented
had
by new
the
jury
released its
Fed. R.
Crim. P.
32(d).
Pellerito
been
witnesses,
counsel) filed
had
a motion
guilty plea.
urged as the
basis for
-2-
withdrawing
counsel
his
until
guilty plea
shortly
before
that
Ivan
the guilty
Fisher, his
plea,
had
trial
been
United States
______________
1988).
v. Pellerito,
_________
Pellerito
701
was sentenced
F.
to
Supp.
18
279
years in
prison.
Pertinently, in
that Fisher and
another lawyer
case
time
to preparing
conferred
the
Pellerito's own
be inadequate:
case,
with Pellerito on a
district court
had
him on
filed motions,
and
number of occasions.
after Pellerito
the
request
found
had
As for
trial at
sought to
replace
affirmed
the
district
court's
On appeal this
refusal
to
allow
United States v.
_____________
filed,
Pellerito
being
-3-
represented
by
yet
another
attorney.
In substance,
Pellerito
now
claims that
the
first
time
that
from
interest.
was
and this,
and
Moore himself
it is
himself
now
on reflection, he
under
the time he
alleged, distracted
even created
has
and that
Pellerito argues
preparation
asserting that,
Fisher
both
conflict
furnished an
affidavit
believes that he
in June 1988.
of
was not
Pellerito also
in connection
of
interest
properly
district court
agreement but
examined.
denied the
had a
In
an
section
out that an
issue previously
by
cannot be revived
-4-
States, 370
______
(1st Cir.
1967).
On the
other
hand, this bar obviously does not apply to a new issue and in
addition
the bar
notably
where
evidence that
may be
a
relaxed in
defendant
he had
relies
no prior
though it
concerns an issue
Giacalone
_________
v.
United States,
_____________
certain circumstances,
upon
substantial
opportunity to
present even
already addressed.
739
F.2d 40,
new
See, e.g.,
___ ____
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
pass muster
although
these
the ineffective
cases.
assistance
The
of
attack
counsel
on
Fisher,
label
is
of Fisher
adds
himself.
almost nothing
By
contrast, the
of importance
to present
a complete picture,
them both.
As
We
and, standing
newly
Moore
it is convenient
to address
to be
turn
therefore
to
the
question
whether
any
of
the
an evidentiary hearing
section 2255 petition.
is not
Rather,
-5-
would
justify
that, if established by
relief.
United
States
_______________
v.
Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied,
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____________
470 U.S. 1058
(1985).
(Even then, no
hearing is
required
1990)).
made upon a
counsel,
(1st
Where a
collateral attack is
on ineffective assistance
of
standard of
reasonable probability
defendant]
would
reasonableness, and
___
not have
insisted on going
that there
pleaded
to trial."
guilty
is a
errors, [the
and would
have
58-59 (1985).
Starting with Pellerito's
was
ended
indeed a
in
federal investigation
1989
with
misdemeanor counts.
major concern
proceeding
reviewed
in
his
Fisher
pleading
that apparently
guilty
to
three
to Fisher,
August
case
of him
the
1988
district court
listened
preparation,
and
to
Fisher
concluded
-6-
in its
prior
testify,
that
his
United States
_____________
v.
Pellerito,
_________
distraction
701 F.
Supp.
at 287-88,
investigation may
colorable defense
below, makes
Whatever
have caused,
291-92.
a point discussed
even less
plausible.
Two side issues relating to Fisher require less comment.
Pellerito's new claim that Fisher had
because
a conflict of interest
Even assuming
that Fisher
had an
interest in
pleasing the
leap--it
was
Moore
and
having
been
not
Fisher
Pellerito
supplanted
by
who
superintended
also complains
Moore
at
that
Pellerito's
was taken
colloquy
with the
under
Fed. R.
Crim.
district court
P. 11.
at the
Pellerito's
time of
the plea
and his
701 F. Supp. at
283.
Turning to
for
Moore, the
trial was
court when it
also
reviewed and
declined in
was unprepared
rejected by
1988 to allow
the district
withdrawal of
the
-7-
guilty
plea.
affidavit
for
now
to the trial
trial,
information,
Moore
Supp. at
statement that he
his assurance
ready
701 F.
says that
Moore's hindsight
deserves
and the
292-93.
little
weight
he was
absent
new
affidavit offers
nothing significant.
he was
only one
retained
day before
taken
in
1988
shows
that
he
conferred
F.
Supp. at 289.
to try
the case in
with
though
trial.
701
not prepared
the
saying that he
1988, but
of
In all events, it
claim
of
constitutional
Fisher's
representation
demonstrated that
1988.
directed
Moore's--that
a substantial
defense
no
been filed
that much of
ground
of
But there
suppression
assertions
that
the
innocently
even begin
was
tapes
has
in
that a motion
to suppress incriminating
one
was overlooked
should have
against
tapes and
could
have
to demonstrate
nor
been
do
sketchy
interpreted
that Pellerito
had a
-8-
serious defense.
rather
Such
claims by Pellerito
are conclusions
requiring a hearing.
See
___
lack of a plausible
was inadequate.
____
Lockhart, Pellerito
________
that, if proved,
United States
_____________
1987).
v. Ramos,
_____
810 F.2d
308, 314
See
___
(1st Cir.
Pellerito had
exposure
ample incentive to
to a
life sentence if
plead guilty in
he went to
1988 (the
in
Malerba, counsel
negotiating
the
explored
to plead
allegation that he
on
help
with
clients;
from
Mario
who was
also
potential for
the
threat
conflict
of
conflict
of interest
was
never
United States v.
_____________
denied, 429
______
received a
deciding
a plea.
representation
between
Mari, 526
____
Cir. 1975),
cert.
_____
in fact
argument was
not
-9-
v. Michaud,
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7 (1st
901 F.2d 5,
Cir.
for failure
(1982).
In
any
event, the
claim
is answered
of
his Sixth
district
Cuyler v.
______
demonstrate
by
In order to
Amendment rights,
Plainly, the
a co-defendant, whose
Malerba's performance in
district court's
judgment
is
summarily
affirmed
________
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