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    Cumming v. United States, 62 F.3d 1411, 1st Cir. (1995)

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    1. Peter Cumming filed a second motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, alleging that 18 U.S.C. § 4111 was unconstitutional and deprived him of equal protection. 2. The district court dismissed Cumming's equal protection claim, finding it clearly lacked merit, and denied his motion to amend to add an ineffective assistance of counsel claim. 3. The First Circuit affirmed the district court's rulings, finding that Cumming waived his equal protection claim by failing to articulate any supporting argument, and that the ineffective assistance claims would be better addressed by the district court in the first instance if Cumming filed a new § 2

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    Cumming v. United States, 62 F.3d 1411, 1st Cir. (1995)

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    1. Peter Cumming filed a second motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, alleging that 18 U.S.C. § 4111 was unconstitutional and deprived him of equal protection. 2. The district court dismissed Cumming's equal protection claim, finding it clearly lacked merit, and denied his motion to amend to add an ineffective assistance of counsel claim. 3. The First Circuit affirmed the district court's rulings, finding that Cumming waived his equal protection claim by failing to articulate any supporting argument, and that the ineffective assistance claims would be better addressed by the district court in the first instance if Cumming filed a new § 2

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    Filed: 1995-08-04 Precedential Status: Non-Precedential Citations: 62 F.3d 1411 Docket: 94-2070

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    1. Peter Cumming filed a second motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, alleging that 18 U.S.C. § 4111 was unconstitutional and deprived him of equal protection. 2. The district court dismissed Cumming's equal protection claim, finding it clearly lacked merit, and denied his motion to amend to add an ineffective assistance of counsel claim. 3. The First Circuit affirmed the district court's rulings, finding that Cumming waived his equal protection claim by failing to articulate any supporting argument, and that the ineffective assistance claims would be better addressed by the district court in the first instance if Cumming filed a new § 2

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    Cumming v. United States, 62 F.3d 1411, 1st Cir. (1995)

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    1. Peter Cumming filed a second motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, alleging that 18 U.S.C. § 4111 was unconstitutional and deprived him of equal protection. 2. The district court dismissed Cumming's equal protection claim, finding it clearly lacked merit, and denied his motion to amend to add an ineffective assistance of counsel claim. 3. The First Circuit affirmed the district court's rulings, finding that Cumming waived his equal protection claim by failing to articulate any supporting argument, and that the ineffective assistance claims would be better addressed by the district court in the first instance if Cumming filed a new § 2

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    of 3

    62 F.

    3d 1411

    NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished


    opinions may be cited only in related cases.
    Peter M. CUMMING, Petitioner, Appellant,
    v.
    UNITED STATES of America, Respondent, Appellee.
    No. 94-2070

    United States Court of Appeals,


    First Circuit.
    Aug. 4, 1995.

    Peter M. Cumming on brief pro se.


    Jay P. McCloskey, United States Attorney, and Margaret D. McGaughey,
    Assistant United States Attorney, on Memorandum of Law in Support of
    Motion for Summary Disposition, for appellee.
    D.Me.
    AFFIRMED.
    Before SELYA, CYR and BOUDIN, Circuit Judges.
    PER CURIAM.

    Peter M. Cumming appeals pro se from the district court's dismissal of his
    motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. Sec. 2255.
    The government has moved for summary disposition, and Cumming has filed
    an opposition and a brief. We grant the motion and affirm.

    The present Sec. 2255 motion is Cumming's second. The first such motionalleging double jeopardy and ineffective assistance of trial and appellate
    counsel-was dismissed without prejudice because Cumming's appeal from
    conviction was pending in this court. Before the direct appeal was decided,
    Cumming filed this Sec. 2255 motion alleging that 18 U.S.C. Sec. 4111 was
    unconstitutional and had deprived him of equal protection of the laws.

    Cumming also moved to amend the second Sec. 2255 motion to assert a claim
    that a third attorney involved in his case had rendered ineffective assistance.
    Subsequently, Cumming's conviction and sentence were affirmed, United
    States v. Cumming, No. 93-1960 (1st Cir. Aug. 9, 1994), and shortly thereafter
    the district court adopted a magistrate-judge's recommendation that (1) the Sec.
    2255 equal protection claim be dismissed because it clearly lacked merit, and
    (2) the motion to amend to add another ineffectiveness of counsel claim be
    denied because the first Sec. 2255 motion had been dismissed without prejudice
    to Cumming's right to refile all his ineffectiveness claims after the decision in
    his direct appeal.
    3

    In deciding Cumming's direct appeal, we rejected the claim that his prosecution
    for unlawful importation of controlled substances was barred by double
    jeopardy principles because of Cumming's British conviction on related
    charges.1 We also decided that Cumming could not claim any violation of 18
    U.S.C. Sec. 4111 because those provisions are only applicable to offenders
    transferred from a foreign country for the express purpose of completing the
    execution of a foreign sentence in the United States. 18 U.S.C. Secs. 4100(a),
    4101(j); United States v. Gambino, 729 F. Supp. 954, 968 (S.D.N.Y.1990),
    aff'd, 968 F.2d 227 (2d Cir.1992). Cumming, slip op. at 4. It is not disputed that
    Cumming's return to the United States was voluntary, and not pursuant to the
    above treaty provisions.

    As an initial matter we note that Cumming's appellate brief and answer to the
    government's motion make no attempt whatsoever to articulate an argument in
    support of his equal protection ground, thereby waiving it. Martinez v. Colon,
    54 F.3d 980, 990 (1st Cir.1995). Even if we were to address that claim, it is
    clear that Cumming's double jeopardy premise has simply been reworked under
    the guise of equal protection. That claim, at bottom, seeks relief from a
    sentence which Cumming believes constitutes double punishment for the same
    offenses. But, we have already resolved Cumming's double jeopardy argument
    and issues disposed of on direct appeal may not be reviewed in a subsequent
    Sec. 2255 proceeding absent an intervening change in the law or a showing that
    manifest injustice would otherwise result. See Singleton v. United States, 26
    F.3d 234, 240 (1st Cir.), cert. denied, 115 S. Ct. 517 (1994); Campbell v.
    Blodgett, 982 F.2d 1321, 1326 (9th Cir.1992) ("A petitioner may not create a
    different ground merely by alleging different facts, asserting different legal
    theories, or couching his argument in different language."); see also Reed v.
    Farley, 114 S. Ct. 2291, 2297 (1994). Nothing indicates that any exception to
    that rule applies here.
    In addition, we find no abuse of discretion by the district court in denying the

    motion to amend, but decline the government's invitation to decide the merits of
    Cumming's ineffective assistance of counsel claims. This court has generally
    adhered to the view that such assessments are best made by the district judge in
    the first instance. Knight v. United States, 37 F.3d 769, 774 (1st Cir.1994);
    United States v. Carter, 815 F.2d 827, 829 (1st Cir.1987); United States v.
    Kobrosky, 711 F.2d 449, 457 (1st Cir.1983). Since the district court has left the
    door open to Cumming to press his ineffectiveness claims, Cumming has the
    option to file a Sec. 2255 motion strictly limited to those claims without being
    subjected to dismissal for abuse of the writ. Cf. Rule 9(b), Rules Governing
    Sec. 2255 Proceedings (successive motions may be dismissed).

    The judgment of the district court is affirmed.

    In 1992, Cumming was approved for transfer to the United States to complete
    the execution of his British sentence under treaty provisions codified at 18
    U.S.C. Secs. 4100-4111, but declined the transfer. Cumming was released from
    British custody in February 1993 after serving the complete foreign sentence

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