Petitioner claims that because the judge was familiar with the case, he had already made up his mind about the outcome of the motion and should have recused himself. In support of this position, he cites to our opinion in Halliday v. United States, 380 F.2d 270 (1st Cir.1967), cert. denied, 395 U.S. 971, 89 S. Ct. 2106, 23 L. Ed. 2d 761 (1969). Halliday, however, is inapposite. The question in that case was whether the same district judge who had accepted pleas of guilty without making any inquiry as to the voluntariness of the pleas or the defendant's understanding of the nature of the charges could decide a 2255 motion requesting a change of pleas on the grounds that the judge had violated Federal Rule of Criminal Procedure 11 in failing to make the inquiry. The motion asserted that in pleading guilty the defendant had been confused and did not understand to what he was pleading guilty. We held that it was not proper for the same judge to review the correctness of his own determination. Id. at 272. We specifically stated, however: "This interdiction does not mean that the sentencing judge cannot review a Sec. 2255 petition to conclude, if appropriate, that no evidentiary hearing is required." Id. at 274.

Petitioner has alleged no facts on which a claim of bias or prejudice by the judge could be based. See 28 U.S.C. Secs. 144, 455. We must also note that petitioner's claim of judicial bias came after his 2255 motion and subsequent motions for reconsideration were denied. In Halliday, the motion for recusal accompanied the filing of the 2255 motion.

Finally, and quite significantly, we point to Rule 4(a) of the Rules Governing Section 2255 Proceedings in the United States District Courts, which the district court judge followed:

(a) Reference to judge; dismissal or order to answer. The original motion shall be presented promptly to the judge of the district court who presided at the movant's trial and sentenced him, or, if the judge who imposed sentence was not the trial judge, then it shall go to the judge who was in charge of that part of the proceedings being attacked by the movant. If the appropriate judge is unavailable to consider the motion, it shall be presented to another judge of the district in accordance with the procedure of the court for the assignment of its business. [Emphasis added.]

Petitioner's claims of denial of exculpatory evidence, denial of a fair trial, violation of his sixth amendment right to full cross-examination and that his conviction was obtained through perjured testimony are all based on the testimony of the government's chief witness, Francis X. Green, and Green's alleged relationship with the United States Attorney at the time of the trial. Although the nomenclature was different, the subject matter of these claims was considered and rejected by us in the original appeal, United States v. Tracey, 675 F.2d 433, and we will not reconsider them. Issues disposed of on a prior appeal will not be reviewed again by way of a 2255 motion. Dirring v. United States, 370 F.2d 862 (1st Cir.1967). "Absent an intervening change in the applicable law, issues that have been raised and decided on a motion for a new trial cannot be reconsidered in a subsequent collateral attack." United States v. Sanders, 723 F.2d 34, 36 (8th Cir.1983). See also United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir.1981); Chin v. United States, 622 F.2d 1090, 1092 (2d Cir.1980), cert. denied, 450 U.S. 923, 101 S. Ct. 1375, 67 L. Ed. 2d 353 (1981); United States v. Natelli, 553 F.2d 5, 7 (2d Cir.), cert. denied, 434 U.S. 819, 98 S. Ct. 59, 54 L. Ed. 2d 75 (1977); United States v. Romano, 516 F.2d 768, 771 (2d Cir.), cert. denied, 423 U.S. 994, 96 S. Ct. 420, 46 L. Ed. 2d 368 (1975).

Petitioner's claims that his presentence report contained false, erroneous and prejudicial material were also considered and rejected by us in the first appeal. United States v. Tracey, 675 F.2d at 440-41. There is no need to cover this ground again.

Finally, we turn to the only claim not raised directly or indirectly on the first appeal, selective prosecution. This was raised for the first time in petitioner's 2255 motion. Under Federal Rule of Criminal Procedure, 12(b)(1), and 12(f),3 petitioner waived the right to raise the selective prosecution defense when he did not, as the rule mandates, raise it prior to trial.

Moreover, it is clear that there is no substantive basis to this claim. The law on selective prosecution is well settled in this circuit:

When considering an attack on the Government's exercise of its broad discretion in the decision whether to prosecute a particular case, we presume that that choice has been made in good faith for reasons of sound governmental policy. See United States v. Lichenstein, 610 F.2d 1272, 1281 & n. 4 (5th Cir.), cert. denied, 447 U.S. 907, 100 S. Ct. 2991, 64 L. Ed. 2d 856 (1980); United States v. Union Nacional de Trabajadores, 576 F.2d 388, 395 (1st Cir.1978). To overcome this presumption, defendants bear a heavy burden. Only if a defendant can establish prima facie(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights[,]

does the burden shift to the government to demonstrate that the prosecution was not premised on an invidious objective. United States v. Union Nacional de Trabajadores, 576 F.2d at 395, quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974).

United States v. Saade, 652 F.2d 1126, 1135 (1st Cir.1981).

No facts have been alleged by petitioner tending to show that other individuals similarly situated have not been prosecuted because of the same type of conduct. To the contrary, we take judicial notice that since petitioner's trial at least five officials of the City of Boston have pled guilty or have been convicted of various federal offenses in this district.4 The presumption that the government's decision to prosecute was made in good faith easily withstands the petitioner's challenge.

Because the 2255 motion was, with one meritless exception, merely a rehash of the first appeal, there was no need for a hearing by the district court judge.

Affirmed.