USCA1 Opinion
February 22, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1246
JOSEPH ROBERT GLIDDEN,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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No. 95-1372
UNITED STATES,
Appellee,
v.
JOSEPH ROBERT GLIDDEN,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Joseph R. Glidden on brief pro se.
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Jay P. McCloskey, United States Attorney, and F. Mark Terison,
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Assistant U.S. Attorney, on brief for appellee.
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Per Curiam. Joseph Robert Glidden appeals the district
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court's dismissal of his second motion filed pursuant to 28
U.S.C. 2255. Glidden filed identical copies of this second
motion in each of his two underlying district court criminal
cases. The district court entered a judgment of dismissal in
each case and we have consolidated Glidden's appeals from
each judgment.
We have reviewed the parties' briefs and the record on
appeal. We agree with the district court's conclusion that
Glidden has abused the writ, essentially for the reasons
stated in the magistrate-judge's recommended decision dated
December 15, 1994. We, therefore, affirm the district court
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judgments that entered on January 30, 1995, in each of the
two underlying district court cases, dismissing appellant's
second motion, filed pursuant to 28 U.S.C. 2255, as an
abuse of the writ. We add only the following.
1. On appeal, Glidden seeks to pursue a claim that he
received ineffective assistance of appellate counsel due to
Attorney Joseph L. Ferris' abandonment of his direct criminal
appeals that were dismissed for want of prosecution when
counsel failed to file a brief. United States v. Glidden,
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Nos. 90-1611; 90-1612, (1st Cir. Sept. 27, 1991) (unpublished
order of dismissal). This claim was, at best, presented only
in skeletal form in Glidden's second 2255 motion. In any
event, in his objections to the magistrate's recommended
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decision, Glidden did not raise any objection to the
magistrate's failure to address this claim and, thus, is
precluded from obtaining appellate review of this claim.
Keating v. Secretary of Health & Human Servs., 848 F.2d 271,
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275 (1st Cir. 1988) (per curiam) (concluding that only those
issues fairly raised by the objections to the magistrate's
report are subject to review in the district court and those
not preserved by such objection are precluded on appeal); see
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also Henley Drilling Co. v. McGee, 36 F.3d 143, 151 (1st Cir.
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1994) (rejecting the contention that a litigant need not file
an objection to a magistrate's failure to address a claim to
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preserve appellate review).
Further, even assuming the claim was sufficiently
developed below beyond skeletal form in this second 2255
motion and then sufficiently preserved for appeal, i.e., not
waived by failing to raise it in his objections to the
magistrate's recommendation, it is not a miscarriage of
justice to fail to consider this claim in this second 2255
motion as Glidden had both sufficient knowledge and
opportunity to timely raise this claim in his first 2255
motion. Glidden was informed in April 1992 that, if he was
claiming that he had not authorized Attorney Ferris to
abandon his direct criminal appeals, he should inform the
district court of this contention via a 2255 motion and,
although by this time Glidden had appointed counsel --
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Attorney O'Brian -- to represent him on his first 2255
motion in the district court, Glidden did not raise this
claim of Attorney Ferris' alleged unauthorized abandonment of
appeals among the two new claims submitted in September 1992
to the district court as an amendment to his first 2255
motion.
2. On appeal, Glidden also seeks to raise for the first
time new grounds to support a claim of ineffective assistance
of counsel with respect to Attorney James Horton, who
represented Glidden at his change of plea and at his
sentencing. Having failed to present these grounds in the
district court, Glidden is precluded from raising them for
the first time on appeal. Johnston v. Holiday Inns, Inc.,
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595 F.2d 890, 894 (1st Cir. 1979). No miscarriage of justice
will occur if we decline to address them. Indeed, all appear
meritless.
The judgments of the district court are affirmed.
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