USCA1 Opinion
September 25, 1995 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1427
THOMAS A. FAULHABER,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Selya and Stahl, Circuit Judges,
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and Gorton,* District Judge.
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Cheryl J. Strum on brief for appellant.
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David J. Apfel, Assistant United States Attorney, and
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Donald K. Stern, United States Attorney, on brief for appellee.
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*Of the District of Massachusetts, sitting by designation.
Per Curiam. We summarily affirm the dismissal of the
Per Curiam.
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petition brought by Thomas A. Faulhaber pursuant to 28 U.S.C.
2255 (1994) for essentially the reasons set forth in the
thoughtful report of the magistrate judge, dated November 4,
1994, thereafter adopted by the district court on de novo review.
We pause only to emphasize a few points.
First, the rule is clear that claims raised and
rejected on direct appeal may not be resurrected on collateral
review under the aegis of a section 2255 petition. See Barrett
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v. United States, 965 F.2d 1184, 1190 n.11 (1st Cir. 1992);
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Murchu v. United States, 926 F.2d 50, 55 (1st Cir. 1991), cert.
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denied, 502 U.S. 828 (1991); Dirring v. United States, 370 F.2d
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862, 864 (1st Cir. 1967), cert. denied, 377 U.S. 1003 (1964).
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The petitioner ignores this rule, rehashing several arguments
that this court previously rejected as unavailing. See United
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States v. Faulhaber, 929 F.2d 16 (1st Cir. 1991).
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Second, the petitioner's claim that he did not receive
constitutionally effective assistance from the attorneys who
handled his trial and his direct appeal is bootless. The record
bears witness that petitioner's trial counsel provided him with a
stellar defense, and that his direct appeal was handled in a
thoroughly professional manner. In no way can the alleged errors
in failing to object when the financial instruments upon which
the criminal charges were based were termed "checks" rather than
"drafts" be said to have affected the outcome of his trial or to
have lengthened his sentence.
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To say more would be to paint the lily. On the face of
the petition, dismissed as meritless by the very judge who
presided over Faulhaber's original trial, Faulhaber can satisfy
neither the performance nor prejudice prong of the test for
ineffective assistance. See, e.g., Scarpa v. Dubois, 38 F.3d 1,
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8-9 (1st Cir. 1994) (setting forth applicable constitutional
standard), cert. denied, 115 S. Ct. 940 (1995).
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Petitioner also alleges, as before, that the government
failed to produce exculpatory evidence in violation of its
obligations under Brady v. Maryland, 373 U.S. 83 (1963). During
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pretrial discovery the prosecution gave petitioner the benefit of
open access to all its files. We agree with the government (and
with the magistrate) that the "undiscovered" deposit slips to
which petitioner now alludes either are imagined or, to the
extent they exist, would most probably have reinforced the
prosecution's case if submitted into evidence. At any rate, we
rejected a version of this claim on direct appeal as impuissant,
and Faulhaber is foreclosed from raising it again by means of a
section 2255 petition. And, moreover, the passage of time has
not increased the potency of the asseveration.
It follows inexorably that the district court did not
abuse its discretion in denying petitioner an evidentiary hearing
on the Brady claims. See United States v. McGill, 11 F.3d 223,
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225-26 (1st Cir. 1993); United States v. Burrows, 872 F.2d 915,
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917 (9th Cir. 1989); Baumann v. United States, 692 F.2d 565, 572-
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73 (9th Cir. 1982); cf. United States v. Panitz, 907 F.2d 1267,
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1273-74 (1st Cir. 1990).
We need go no further. Although hope springs eternal,
points fully considered and properly rebuffed cannot rewardingly
be relitigated in perpetuity. Since this appeal flies in the
teeth of that truism, and presents no fairly debatable issue of
fact or law, the judgment of the district court must be summarily
affirmed. See 1st Cir. R. 27.1.
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Affirmed.
Affirmed.
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