USCA1 Opinion

December 12, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1256

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

JOHN J. ZULETA-ALVAREZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

John J. Zuleta-Alvarez on brief pro se.

______________________
Jay P. McCloskey,
________________

United States

Attorney, and

F. Mark Teris
______________

Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
__________

Petitioner-appellant John J.

Zuleta-

Alvarez appeals pro se from the district court's dismissal of

___ __

his second petition pursuant to 28

of

the

writ.

affirming the

was

denial of

in

our

2255 as an abuse

November

3, 1992

petitioner's first

opinion

2255 petition

intended to indicate that an "abuse of the writ" defense

would be

We

Nothing

U.S.C.

unavailable if petitioner filed

merely

intended

to

alert the

pro
___

a second petition.

se
__

petitioner that

although the issue he raised for the first time on appeal did

not merit

relief under

our narrowly circumscribed

review, it could be raised in

a new

scope of

2255 petition, subject

to any available defenses (including abuse of the writ).

Petitioner's

States,
______

reliance

upon

373 U.S. 1 (1963), is misplaced.

Sanders
_______

v.

United
______

McCleskey v. Zant,
_________
____

499

U.S. 467

standard

(1991),

that

established the

now governs

Petitioner has failed to

to raise the two

in

We disagree

that this

O'Campo, 973
_______

constituted

law

new

such

petitioner's present claims

holding relied

language

of

of

his first

writ

cases.

F.2d

that

us in his first

court's decision

1015 (1st

the

legal

petition was

then-current

-2-

United

filed.

in

Cir. 1992),

basis

was not reasonably available

upon a straightforward

the

the

prejudice

demonstrate "cause" for his failure

United States v.
______________

time that

abuse

issues presently before

2255 petition.

the

cause and

for

at

The O'Campo
________

interpretation of the

States

Sentencing

Guidelines

and

the commentary

language

was

contained

December

1991, when

in

the

petitioner

thereto.

The

Guidelines

filed his

same relevant

in

first

effect

in

petition.

Therefore, the language of the Guidelines themselves provided

a legal basis for petitioner's present claims.

Petitioner

showing

cause

for

has failed

failing

to

to

satisfy

raise

his burden

earlier

the

of

claims

contained in his second

2255 petition.

that a "fundamental miscarriage

dismissing

shown

of justice would result from

a failure to entertain the claim[s]."

U.S. at 495.

Nor has he

McCleskey v. Zant, 499

_________
____

Therefore, we affirm the district court's order

______

petitioner's second

2255 as an abuse of the writ.

petition under

28

U.S.C.

-3-