USCA1 Opinion

July 20, 1992

[NOT FOR PUBLICATION]

____________________
No. 92-1159
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
GUISEPPE PELLERITO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr, and Boudin, Circuit Judges.
______________
____________________
Robert W. Odasz on brief for appellant.
_______________
Daniel F. Lopez-Romo, United States Attorney, Robert S.
_____________________
_________
Mueller, III, Assistant Attorney General, Mary Lee Warren,
____________
________________
Bruce A. Pagel, Hope P. McGowan, and Marietta I. Geckos, U.
______________ ________________
___________________

S. Department of Justice, on brief for appellee.

____________________
____________________

Per Curiam.
__________

Giuseppe Pellerito filed a petition in the

district court, pursuant to

earlier guilty

similar
the

case.

The gist of

The background
than 30

by ineffective

The district court, having heard

arguments by

petition

Pellerito appeals.

with more

vacate his

his plea had been induced

assistance of counsel.

denied

2255, to

plea in a drug conspiracy

his claim was that

rejected

28 U.S.C.

without

Pellerito
an

three

and

years ago,

evidentiary hearing,

and

We affirm.
facts can

be stated briefly.

co-defendants, Pellerito was

1988 for conspiring to

Together
indicted in

distribute heroin as part of

a major

drug

distribution ring.

and one co-defendant

Many defendants pled but Pellerito

went to trial on June 6,

following

day,

Pellerito

government

and entered

reached

a guilty

1988.

agreement

plea to

On the

with

the single

his co-defendant entered

the
count

charged against

him, and

a guilty

plea on June 8.

Pellerito's decision was prompted in part by

government evidence that threatened Pellerito with a possible

life sentence; the plea

agreement capped his exposure at

years with a promised recommendation by

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

prior to his sentencing seeking to withdraw his

had

a motion

guilty plea.

urged as the

basis for

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withdrawing
counsel

his

until

guilty plea
shortly

before

inadequately prepared, and that

that

Ivan

the guilty

Fisher, his
plea,

had

trial
been

Emanuel Moore, who took over

the defense shortly before trial, had lacked time to prepare.

After hearing testimony from both attorneys among others, the

district judge denied the motion and later filed an extensive
opinion.
(D.P.R.

United States
______________
1988).

v. Pellerito,
_________

Pellerito

701

was sentenced

F.
to

Supp.
18

279

years in

prison.
Pertinently, in
that Fisher and

its decision the

another lawyer

case

had not been shown to

time

to preparing

conferred

the

Pellerito's own

who worked with

be inadequate:

case,

with Pellerito on a

Moore, he had entered

district court

had

him on

filed motions,

and

number of occasions.

after Pellerito

the

they had devoted

the case only shortly before

request

found

had

As for
trial at

sought to

replace

Fisher, but Moore was an experienced criminal trial attorney,

had

a former United States Attorney as local counsel and had

some prior familiarity with the case.

the trial
court

Moore had also assured

court that he was ready for trial.

affirmed

the

district

court's

On appeal this

refusal

withdrawal of the guilty plea by Pellerito.

to

allow

United States v.
_____________

Pellerito, 878 F.2d 1535 (1st Cir. 1989).

_________
On July
was

filed,

10, 1991, the present

Pellerito

being

-3-

section 2255 action

represented

by

yet

another

attorney.

In substance,

Pellerito

now

claims that

Fisher and Moore provided inadequate representation

this circumstance vitiated his guilty plea.
for

the

first

time

that

investigation for federal

represented Pellerito;
Fisher

from

interest.

was

and this,
and

Moore himself

it is

himself

now

on reflection, he

adequately prepared for trial

under

the time he

alleged, distracted

even created

has

and that

Pellerito argues

tax law violations at

preparation

asserting that,

Fisher

both

conflict

furnished an

affidavit

believes that he

in June 1988.

of

was not

Pellerito also

suggests (in an argument not made to the district court) that

Mario Malerba, counsel for Pellerito's co-defendant, assisted
Pellerito
conflict

in connection
of

interest

with the plea

never

unpublished opinion, the

properly

district court

agreement but
examined.
denied the

had a
In

an

section

2255 motion without an evidentiary hearing, and Pellerito now

seeks review in this court.
At the

outset, the government contends

need not be reached.

that the merits

It says that Pellerito's present motion

merely reasserts a claim of ineffective assistance of counsel

that this court reviewed and
prior appeal.

rejected in 1989 on Pellerito's

Correctly, the government points

out that an

issue previously
by

settled on direct appeal

a collateral attack under section

Butt, 731 F.2d 75, 76 n.1

____

cannot be revived

2255. United States v.

_____________

(1st Cir. 1984); Dirring v. United

_______
______

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States, 370
______

F.2d 862, 864

(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

two of Pellerito's three

under

these

the ineffective

cases.
assistance

main points arguably

The
of

attack
counsel

on

Fisher,
label

is

unchanged, is now supported with new facts concerning the tax

investigation
affidavit
alone,

of Fisher

adds

himself.

almost nothing

By

contrast, the

of importance

to present

a complete picture,

them both.

As

We

and, standing

would warrant a summary denial of the motion; but the

charges against the two lawyers overlap in

newly

Moore

some measure and,

it is convenient

to address

for Malerba, Pellerito's claim appears

to be

conceived and was not discussed in the earlier appeal.

turn

therefore

to

the

question

whether

any

of

the

allegations warrants an evidentiary hearing and conclude that

none does.
It is

familiar law that

automatically required for a

an evidentiary hearing
section 2255 petition.

is not
Rather,

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the petitioner needs to allege facts

evidence,

would

justify

that, if established by

relief.

United
States
_______________

v.

Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied,
___________
____________
470 U.S. 1058

(1985).

(Even then, no

hearing is

required

where the motion's allegations are patently incredible or are

conclusively disproven by the record.

United States v. Butt,

_____________
____

731 F.2d at 77; Dziurgot v. Luther, 897 F.2d 1222, 1225

________
______
Cir.
a

1990)).

What facts would warrant relief is, of course,

matter of substantive law.

made upon a
counsel,

(1st

Where a

guilty plea based

collateral attack is

on ineffective assistance

of

the Supreme Court has instructed us that two things

need to be shown: that counsel's representation fell below an

objective

standard of

reasonable probability
defendant]

would

reasonableness, and
___

that "but for counsel's

not have

insisted on going

that there

pleaded

to trial."

guilty

is a

errors, [the

and would

have

Hill v. Lockhart, 474 U.S. 52,

____
________

58-59 (1985).
Starting with Pellerito's
was
ended

indeed a
in

federal investigation

1989

with

misdemeanor counts.
major concern
proceeding
reviewed

in
his

charges against Fisher, there

Fisher

pleading

that apparently

guilty

to

three

While the investigation must have been a

to Fisher,
August
case

of him

the

1988

district court
listened

preparation,

and

to

Fisher

concluded

representation of Pellerito had been adequate.

-6-

in its

prior

testify,
that

his

United States
_____________

v.

Pellerito,
_________

distraction

701 F.

the federal tax

the ultimate test of

did.
and

Supp.

at 287-88,

investigation may

colorable defense
below, makes

Whatever

have caused,

adequate representation was what Fisher

That issue the district court

laid to rest.

291-92.

has previously explored

Pellerito's failure to establish that any

was overlooked in 1988,

a point discussed

the inadequate representation charge

even less

plausible.
Two side issues relating to Fisher require less comment.
Pellerito's new claim that Fisher had
because

a conflict of interest

of the federal tax investigation takes him nowhere.

Even assuming

that Fisher

had an

interest in

pleasing the

federal prosecutor in Pellerito's case--which is something of

a

leap--it

was

Moore

and

Pellerito's plea agreement.

Fisher,

having

been

not

Fisher

Pellerito

supplanted

by

who

superintended

also complains
Moore

at

that

Pellerito's

insistence, failed to appear in court when Pellerito's guilty

plea

was taken

colloquy

with the

makes clear that

local

under

Fed. R.

Crim.

district court

P. 11.

at the

Pellerito's

time of

Pellerito was satisfied with Moore

counsel and waived Fisher's presence.

the plea
and his

701 F. Supp. at

283.
Turning to
for

Moore, the

trial was

court when it

also

claim that Moore

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

was not prepared, contradicting

judge in

deserves

and the

292-93.

June 1988 that

little

weight

he was

absent

new

affidavit offers

nothing significant.

he was

only one

retained

day before

trial, rather than four days (as he stated in 1988), but

testimony

taken

in

1988

shows

that

he

conferred

Pellerito and began work

four days before trial even

he was formally retained

only on the day before

F.

Supp. at 289.

States Attorney, has

himself was

Moore's local counsel,

to try

the case in

course he was never expected to do so.

with
though

trial.

701

the former United

also filed an affidavit

not prepared

the

saying that he
1988, but

of

In all events, it
claim

of

constitutional

Fisher's

representation

demonstrated that
1988.

is independently fatal to Pellerito's

error--whether
or

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

the tape evidence against

been explained away.

one

was overlooked

We are now told in fairly general terms

should have

against

tapes and

Pellerito could have

is no showing that any valid

available,

could

have

to demonstrate

nor
been

do

sketchy

interpreted

that Pellerito

had a

-8-

serious defense.
rather

Such

claims by Pellerito

than allegations of fact

are conclusions

requiring a hearing.

See
___

Myatt v. United States, 875 F.2d 8, 11 (1st Cir. 1989).

_____
_____________
Given the
not

lack of a plausible

defense, Pellerito could

prevail on his claim even if he could show that counsel

was inadequate.

Under the two-pronged requirement of Hill v.

____
Lockhart, Pellerito
________

must also allege facts

that, if proved,

create a "reasonable probability" that adequate counsel would

have led Pellerito not to plead guilty.
also
____

United States
_____________

1987).

v. Ramos,
_____

474 U.S. at 59.

810 F.2d

308, 314

See
___

(1st Cir.

No such probability has been shown in this case where

Pellerito had
exposure

ample incentive to

to a

life sentence if

plead guilty in
he went to

1988 (the

trial) and even

today he cannot point to a plausible defense.

Finally, we
relied heavily

in

Malerba, counsel
negotiating

the

explored

to plead

allegation that he

on

help

for Pellerito's co-defendant

with
clients;

from

Mario

who was

also

This, says Pellerito, was de facto dual

________
a

potential for
the

threat

conflict

of

conflict

of interest
was

never

by the trial judge under Fed. R. Civ. P. 44(c) (see

___

United States v.
_____________
denied, 429
______
received a

deciding

a plea.

representation
between

turn to Pellerito's new

Mari, 526
____

F.2d 117 (2d

U.S. 941 (1976));

lighter sentence.

Cir. 1975),

and the co-defendant

Since this

cert.
_____
in fact

argument was

not

made to the district court it would normally be foreclosed on

-9-

appeal (United States

_____________
1990)), and it might

v. Michaud,
_______

7 (1st

be foreclosed in any event

to raise it at the time

plea

901 F.2d 5,

Cir.

for failure

of the motion to withdraw the guilty

and the original appeal, absent a showing of good cause

for this failure.

United States v. Frady, 456 U.S. 152, 167

_____________
_____

(1982).
In

any

event, the

claim

Sullivan, 446 U.S. 335, 350,

________

is answered

of

his Sixth

defendant must establish that

adversely affected
mere fact of

district

"[T]he possibility of conflict

is insufficient to impugn a criminal conviction.

a violation

Cuyler v.
______

(l980), quoted by the

court in another connection:

demonstrate

by

In order to

Amendment rights,

an actual conflict of interest

his lawyer's performance."

a different sentence for

Plainly, the

a co-defendant, whose

role, criminal history and other characteristics may be quite

different, does not even begin to suggest "an actual conflict
of

interest adversely affect[ing]"

Malerba's performance in

whatever help he provided to Pellerito.

The

district court's

judgment

is

summarily

affirmed
________

pursuant to Local Rule 27.l.

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