USCA1 Opinion

February 19, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1291
ROBERT A. WHITTEMORE,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Higginbotham,* Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

David M. Sanders for appellant.

________________
F. Mark Terison, Assistant United States Attorney, with whom
_______________
Richard S. Cohen, United States Attorney, and James M. McCarthy,
________________
_________________
Assistant United States Attorney, were on brief for appellee.
____________________
____________________
_____________________
*Of the Third Circuit, sitting by designation.

Higginbotham, Senior Circuit Judge.

____________________
A. Whittemore,
under

28

sentence.

appeals from

U.S.C.

2255 to

the denial of
set

aside,

Petitioner, Robert
his second

vacate

petition

or correct

his

The district court dismissed the petition as an "abuse

of the writ".

We affirm.
I.

In June 1988,

Whittemore was convicted of one count of

conspiracy to possess with intent to distribute

counts of knowingly and

cocaine, and two

intentionally distributing a quantity of

cocaine.

At

trial the prosecution

Tyrone

Gray, a

$1,500

on

showed that Whittemore

government informant,

one occasion,

another occasion.
conspired with Gray

The

and

two

an

ounce of

kilograms worth

prosecution also showed

and a

woman named Lisa

sold

cocaine for
$72,000

on

that Whittemore

Obremski to

obtain

cocaine in Florida and distribute it in Maine.

Following

his

conviction, Whittemore

entered

cooperation agreement with the government in which

right of direct appeal of his conviction.

into a

he waived the

The government in turn

gave Whittemore "use immunity" for his cooperative statements and

agreed

to

notify

the

Whittemore's cooperation.

sentencing

of

the

extent

of

Thereafter, in August 1988, Whittemore

was sentenced to imprisonment

to

court

for 15 years on all

three counts,

be served concurrently, and 10 years of supervised release on

the two counts of distribution, to run concurrently.

On
court,

April 25,

1991, Whittemore

requesting the court to

issue an order

sentence was subject to parole.

a motion to correct
Rules of Criminal
under

wrote to

stating that his

The court treated the letter

a sentence under Rule

Procedure.

which Whittemore was

the district

35(a) of the

The court held

Federal

that the

convicted were subject

as

charges

to the Anti-

Drug Abuse Act of 1986 and therefore did not permit parole.
On August 19, 1991,
2255
the

petition.
issue

of

Whittemore filed pro se

___ __

his first

In this first petition, Whittemore again raised

whether

he

was

appropriately

precluded

from

consideration for parole by the provisions of the Anti-Drug Abuse

Act of 1986.
found

On

October 17, 1991, the district court

that Whittemore's

non-parolable provisions

conviction was
of the

once more

clearly subject

Anti-Drug Abuse Act

to the

and denied

his petition without an evidentiary hearing.

On November 12, 1991, Whittemore filed, again pro se, a

___ __
second
issues

2255 petition.
as grounds

to vacate

This time,
or correct

Whittemore claimed that Tyrone Gray

prosecution

at Whittemore's

convicted.

Second,

Whittemore

trial,

he claimed
-33

raised three

his sentence.

First,

gave false testimony for the

thereby causing

that Lisa

him to

Obremski gave

be

false

testimony

at

sentencing
Finally,

his

judge

sentencing
to

Whittemore

impose

hearing,
a

claimed

longer

that

thereby
term

he was

causing

of

the

imprisonment.

entitled

to

credit

against his sentence for time served prior to his conviction.

On December
Whittemore's second
that Whittemore
have

asserted in

3, 1991,

the government moved

petition on the ground,

among other things,

alleged claims

in the

petition which he

the earlier

petition.

On December

Whittemore

responded to the government's motion.

the court,

Whittemore explained

not be dismissed.

to dismiss

why his second

could

7, 1991,

In a letter to

petition should

Whittemore wrote in part:

I did not know that when I filed my first motion I

should have put these other points in as well.
My
first motion was done by a friend that worked in the
law library.
Had I understood this their [sic] are
some other points I would have made on this last one.
On

January

15,

1992,

the

district

court

denied

Whittemore's second petition without an evidentiary hearing.

The

court found that the government had carried its burden of showing
that Whittemore had abused the writ of habeas
also determined that Whittemore

corpus.

had failed to show

The court

that failure

to entertain his second petition would result in a miscarriage of

justice.

As to Whittemore's claim that he was entitled to credit

for time served prior to his conviction, the court concluded that
Whittemore

had not

exhausted

his

administrative

remedies

by

-44

failing

to pursue his claim with the

event, the court

Bureau of Prisons.

reasoned, even if Whittemore had

administrative remedies, he

In any

exhausted his

would not be entitled

to credit for

time served because he was out on bail and not incarcerated prior
to his conviction.
On appeal, Whittemore, now represented by
abandoned his claim
sentence
does

not

that he

for time served

challenge

on

is entitled to

credit against

prior to conviction.
appeal

the

counsel, has

court's

his

Whittemore also
finding

that

no

fundamental miscarriage of justice would result from a failure to

entertain

the claims in the

Whittemore presents

second

three main

2255

petition.1

arguments: 1) that

Instead,

the district

court erred in not giving him notice that his second petition was

subject to

dismissal for abuse of the writ; 2) that the abuse of

the writ

standard

petition

"was filed

is

inapplicable
out of

because his

ignorance" and,

first

therefore

pro
___

se
__

"had no

____________________
1In responding to the district court's finding that no
miscarriage of justice would result from denying his second
petition, Whittemore writes in his brief on appeal: "It is
not Mr. Whittemore's purpose within the context of this
appeal to challenge the district court `miscarriage of
justice' analysis." Appellant's Brief at 8-9. Accordingly,
we need not address in detail the court's miscarriage of
justice analysis. It suffices to say that we would agree
with the district court's conclusion that, under McCleskey
_________
v. Zant, 111 S.Ct. 1454 (1991), no miscarriage of justice
_______
would result from the denial of Whittemore's second
petition.
-55

substantive meaning"; and 3) that, even

if the abuse of the writ

analysis is applicable to the second petition, he did satisfy the

burden to show
earlier

cause for his failure to raise

2255 petition.

his claims in the

II.
The
question

district

court

correctly

of whether a petitioner

corpus is governed by

determined

has abused the

that

the

writ of habeas

McCleskey v. Zant, 111 S.Ct.

_________________

1454 (1991).

In McCleskey, the Supreme Court held that "a petitioner can abuse
_________
the writ

by raising

a claim

in a subsequent

petition that

he

could have raised in the first, regardless of whether the failure

to

raise it

S.Ct. at

earlier stemmed from

1468.

abuse of the

The burden

deliberate choice."

is on the government

writ. Id. at 1470.

___

Id., 111
___

to first plead

The government satisfies

this

burden "if, with clarity and particularity, it notes petitioner's

prior

writ history, identifies

the claims

that appear

for the

first time, and alleges that petitioner has abused the writ." Id.
___

The burden to
petitioner's. Id.
___
must

disprove abuse of the writ

In order

to satisfy this

then becomes

burden, petitioner

show cause for failing to raise earlier the claim presented

in the subsequent petition.

Id.
___
-66

To show cause,

petitioner must

show

that

some

interference or
legal

external

Id.
___

such

as

the reasonable unavailability of

basis for a claim,

earlier.

impediment,

at 1472.

prevented the claim

If

petitioner

governmental

the factual or

from being raised

cannot show

cause "the

failure to raise the claim in an earlier petition may nonetheless

be

excused if he or she can

of justice would result

show that a fundamental miscarriage

from a failure to entertain

the claim."

Id. at 1470.
___
A.
As a

preliminary matter,

that the district court erred

Whittemore argues

on appeal

in not giving him notice

that his

second petition was subject

to dismissal.

Whittemore's argument

goes

of the Rules

Governing Section 2255

as follows: Rule 9(b)

Proceedings provides that a second or successive

be

dismissed if

assert
process.
form to

grounds

the
in

court finds
an

2255 motion may

that petitioner's

earlier petition

failure to

constituted

abuse

of

Following Rule 9(b) in the appendix of forms is a model

be

used in

drafted for the

2255 petitions.

benefit of the

This

form "was

pro se litigant."

clearly

The form

is

___ __
designed to give the

pro se petitioner specific notice

___ __

petition is subject to dismissal.

Whittemore, at the time of the

filing of his second

2255 petition, was a pro

___

district

sent

court never

that the

the Rule

se litigant. The
__

9(b)

form to

court

should

Whittemore.

-77

Therefore, Whittemore

argues,

this

reverse

the

district court's order dismissing his second petition.

We find

this argument unconvincing.

The fact

of the

matter is Whittemore did have notice that his second petition was
subject to dismissal.

The form which he used to file the first

2255 petition contained the warning: "CAUTION: If you fail to set

forth

all ground[s]

in

this motion,

presenting

additional grounds

at a

Whittemore

actually responded

to

dismiss

his second

petition.

In

you

may be

barred

later date."
the
a

Furthermore,

government's
letter to

from

motion

to

the court,

he

explained that at the time he filed his first petition he did not
know that he

was supposed to present all of

his claims at once.

Finally, we have never held in this circuit that failure

specific notice to a

petitioner is alone grounds to

district court's dismissal of a

2255

to give

reverse the

petition for abuse of the

writ, especially when,

as here, the petitioner had actual notice

that

subject to

the petition was

Gabriel,
_______
writ

726 F.2d 7,

dismissal. See
___

10 (1st Cir. 1984)

McLaughlin v.
_____________

(pleading abuse of the

puts petitioner on notice to show cause why claim raised in

subsequent petition was not brought in an earlier petition).

B.
Whittemore next argues that
writ

standard

should not

be

the McCleskey abuse of the

_________

applied

to his

second

petition

-88

because

his

first petition

"was filed

out of

ignorance" and,

therefore

"had

no substantive

meaning."

Whittemore's argument, the first

which

the court

had

already

motion; namely the issue

parole.
petition,

The

As we

2255 petition raised an issue

denied

in Whittemore's

of whether his sentence was

district

court,

did not rule

in

denying

on the merits

the

of the

argues, for

purposes of

abused the writ, the first

Rule

35

subject to

first

2255

claim, since that

claim had already been decided in the Rule 35 motion.

Whittemore

understand

Therefore,

determining whether

2255 petition should

he has

not count, and

the second petition should in effect be considered the first.

Whittemore

has

not cited

rather ingenious proposition.

doctrine of abuse

In

any

case

to support

any event, the

point of

petitioner alleges in the first

what

petition does not allege in the first petition.

___
S.Ct. at

1470.

Whittemore made in the

been decided by
first petition

the

of the writ, as explained in McCleskey, is not

_________

what

111

this

Thus, it

is not

2255 petition, but rather

relevant that

first petition was one which

the court.
Whittemore was

The point is

claims which he now raises in the second petition.

-99

the claim

had already

that in bringing

obligated to present

C.

McCleskey,
_________

all of

the

the

Whittemore's
abuse

remaining contention is that, even if the

of the writ analysis is applicable to his second petition,

he did satisfy the burden to

his

claims

in

the

show cause for his failure to raise

earlier

Whittemore explains that the

2255

petition.

Specifically

issues raised in the second

motion were not raised in the

first

2255

2255 motion because he did

not have the funds to hire an attorney, he was not represented by

counsel at the time

of both motions, and he

was unfamiliar with

the law.
In

Andiarena v. U.S., 967 F.2d 715 (1st Cir. 1992), we

_________________

considered the pro se appeal

___ __
his second

2255 petition by

to establish cause
petition,

petitioner explained

We

raise his claims

that at

the time

denial of

As an attempt
in a

held petitioner's

established in

explanation insufficient

at 718.
McCleskey,

We
"to

prior

he filed

not have access to the transcripts

cause. Andiarena, 967 F.2d

_________
standard

the district court.

for failure to

first petition he did

trial.

of a petitioner from the

his

of his

to show

reasoned that under

the

establish `cause'

for

_________
failure to raise a claim in a prior petition, one
some external impediment, such
reasonable unavailability

must show that

as government interference or the

of the factual

and legal basis

for a

claim prevented it from being raised earlier." Id.

___

-1010

Here, Whittemore has failed

failure to

raise his claims in the

and legal basis

for Whittemore's

prosecution witness
him

at his

to be convicted,

hearing

also gave

longer term

of

his

claim.

Nor

trial gave false

has

The factual

testimony, causing

key witness at

testimony, causing

imprisonment.

"reasonable unavailability

first petition.

2255 petition is that the key

and that a

false

to establish cause for his

Whittemore

of the

Whittemore

his sentencing

him
has

to receive
not

factual and legal

shown

some

other

shown

the

basis" for

"external

impediment" for his

basic

failure to

claim is that his

raise the

claim.

sentence should be

key prosecution witnesses lied.

vacated because two

This is a straightforward claim

which he could have presented at the time of his

even though

he did not have

Whittemore's

the funds to hire

first petition,

counsel and even

though he was unfamiliar with the law.

The Supreme Court held in McCleskey that a petitioner's

_________
explanation for failing to

raise a claim in an

earlier petition

must be based on some "objective factor external to the defense."

McCleskey, 111 S.Ct.
_________
for failing
based

on any

at 1470.

to raise

The reasons Whittemore

his claim

objective

in the

factor external

first petition
to

advances

are not

his defense.

We

therefore cannot rationally conclude that Whittemore's ability to

-1111

raise

his claim in the

earlier petition was

somehow impeded by

the fact that he was acting pro se at the time.

___ __
For the foregoing reasons, we
the district court dismissing
28 U.S.C.

will affirm the order of

Whittemore's second petition under

2255.

-1212