USCA1 Opinion
November 17, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1397
ANA MARIA LOPEZ DEL RIO,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Ana Maria Lopez Del Rio on brief pro se.
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Jay P. McCloskey, United States Attorney, F. Mark Terison,
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Assistant United States Attorney, and Margaret D. McGaughey, Assistant
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United States Attorney, on brief for appellee.
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Per Curiam. Ana Maria Lopez Del Rio appeals the
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dismissal of her second pro se motion to vacate, set aside,
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or correct her sentence under 28 U.S.C. 2255. The motion
was denied as an abuse of the writ. We affirm.
I.
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Del Rio pleaded guilty to possessing, distributing
and conspiring to possess and distribute cocaine in violation
of 21 U.S.C. 841 and 846 and was sentenced to 132 months
imprisonment. Her appeal of that sentence raised only one
ground for review: that the district court incorrectly found
her to be a "leader" under U.S.S.G. 3B1.1(a) and
erroneously enhanced her offense level accordingly. We
affirmed the sentence, United States v. Ana Maria Lopez Del
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Rio, No. 91-1442 (1st Cir. Nov. 14, 1991), and Del Rio then
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filed her first 2255 motion. It alleged two grounds for
relief. First, she argued that the district court misapplied
U.S.S.G. 1B1.3(a)(2) in deciding that the scope of the
conspiracy included the drug transactions and quantities set
out in the presentence report as well as the testimony at the
trial of Del Rio's co-conspirator and brother, Andre Lopez
Polanco. Second, Del Rio contended that there was
insufficient evidence to support a conclusion that she was a
leader under U.S.S.G. 3B1.1(a). The district court
summarily denied the motion and no appeal was taken.
In this, her second motion to vacate sentence under
2255, Del Rio asserts one ground for relief: Whether the
district court erred by adopting the presentence report based
on the relevant conduct section of the sentencing guidelines.
In a supporting memorandum, Del Rio argued that the November
1, 1992 amendments to 1B1.3 clarified the relevant conduct
guideline, and that, accordingly, the district court
improperly based her sentence on drug transactions and
quantities that she could not reasonably have foreseen within
the conspiracy.
The government's response claiming, inter alia,
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abuse of the writ under the teaching of McCleskey v. Zant,
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111 S. Ct. 1454, 1468 (1991), outlined Del Rio's prior writ
history and argued that the single issue raised in the second
motion, to the extent that it differed from ground one in the
first 2255 motion, could not be raised now without a
showing of "cause" for having failed to raise the present
claim earlier. Id. The government contended that cause
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could not be shown because the current "relevant conduct"
claim was simply a restatement of the claim raised in the
first motion disputing the amount of cocaine involved in the
conspiracy. The district court summarily denied the motion
as an abuse of the writ. Del Rio's subsequently-filed reply
to the government's response did not address the abuse of the
writ charge. This appeal ensued.
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II.
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Del Rio's second motion to vacate sentence was
properly dismissed under Rule 9 of the Rules Governing 2255
proceedings. Rule 9(b), consistent with the language of
2255 ("The sentencing court shall not be required to
entertain a second or successive motion for similar relief on
behalf of the same prisoner."), provides that successive
2255 motions may be dismissed "for abuse of the procedure."
While Rule 9(b) does not define "abuse", under the abuse of
the writ doctrine, see McCleskey, 111 S. Ct. at 1467-71,
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petitioners invoking either 28 U.S.C. 2254 or 2255 will be
excused from failing to raise an issue earlier only by
showing "cause for failing to raise it and prejudice
therefrom" or that a fundamental miscarriage of justice would
otherwise result. McCleskey, 111 S. Ct. at 1470; Andiarena
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v. United States, 967 F.2d 715, 717 (1st Cir. 1992); United
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States v. Flores, 981 F.2d 231, 234 (5th Cir. 1993).
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Here, the government adequately pleaded abuse of
the writ in response to Del Rio's second motion. Andiarena,
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967 F.2d at 716. Since Del Rio's first 2255 motion was not
decided on the merits, she must disprove abuse by showing
that "some external impediment, such as government
interference or the reasonable unavailability of the factual
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or legal basis for a claim, prevented it from being raised
earlier." Id. at 718. Del Rio has failed to make such a
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showing. The only new assertion in support of her claim that
the court held her accountable for conduct that was not
"reasonably foreseeable" by her --- that Guideline Amendment
439 "clarified" the relevant conduct guideline, 1B1.3, and
reduced her sentencing range exposure --- is unavailing to
show "cause." The amendment, which came into effect on
November 1, 1992, eighteen months after sentencing, is not
retroactive in operation. U.S.S.G. 1B1.10. Thus, whether
or not the amendment has the effect Del Rio contends, a
question we need not decide, it is not a "retroactive change
in the law . . . represent[ing an] acceptable excuse[ ] for
failing to raise the claim earlier." McCleskey, 111 S. Ct.
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at 1467. Thus, Del Rio not only has failed to show cause for
her previous failure to raise the issue, she has shown
neither prejudice nor a miscarriage of justice since the
amendment on which her claim depends was, and remains,
inapplicable.
Because of the "threshold nature of the abuse of
the writ inquiry," id. at 1471, we also need not consider
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whether the claim at issue here had been procedurally
defaulted at some earlier stage of the proceedings.1
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1. Although Del Rio was then represented by counsel, she
failed to raise a relevant conduct sentencing guideline
challenge on direct appeal. Generally, waiver of a 2255
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Obviously, if a successive motion under 2255 was found not
an abuse of procedure, Rule 9(b), 28 U.S.C. foll. 2255, it
would then be necessary to consider whether the petition
suffers from other procedural defects. McCleskey, 111 S. Ct.
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at 1466.
III.
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In conclusion, even if we were to reach the merits
of Del Rio's claim, we would find no error in the sentencing
court's application of the relevant conduct guidelines in
effect at the time of sentencing. The district court
properly determined, as a matter of law, that the motion
constituted an abuse of the writ.
Affirmed.
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claim on direct appeal is excused by a showing of cause and
actual prejudice. See Campino v. United States, 968 F.2d
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187, 190 (2d Cir. 1992); United States v. Biberfeld, 957 F.2d
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98, 104 (3d Cir. 1992). While we need not decide the issue,
we note that Del Rio has not alleged that her attorney's
failure to raise the issue on appeal constituted ineffective
assistance of counsel.
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