USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2322

ANGEL RODRIGUEZ,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________
Campbell, Senior Circuit Judge,
____________________
and Lynch, Circuit Judge.
_____________

____________________

Angel Rodriguez on brief pro se.

_______________
Donald K. Stern, United

States Attorney, and

Richard L. Hoffm

_______________

________________

Assistant United States Attorney, on brief for appellee.

____________________

December 12, 1997

____________________

Per Curiam.
__________

Appellant Angel Rodriguez appeals from

the denial of his motion filed

under 28 U.S.C.

2255.

For

the following reasons, we agree with the district court

that

the motion was meritless.

1.

property

Appellant's claim

was excessive

cognizable in a

relief

(1st Cir.

scope of

Eighth

monetary-type penalty

See Smullen v.
___ _______

1996)

entitled to

under the

2255 proceeding since

from a

confinement.

that the forfeiture

a reduced

Amendment is

not

appellant seeks only

and

not release

United States, 94 F.3d

_____________

(holding that

of his

claim that

restitution order

from

20, 25

defendant

falls outside

is

the

2255).

2.

violates the

Appellant's

argument

prohibition against

that

the

double jeopardy

forfeiture

fails for

the simple reason that the forfeiture was imposed in the same
____

proceeding that resulted in appellant's

__________

Department of Revenue
______________________

v.

Kurth Ranch,
___________

(1994) (the collection of a

separate
________

termination

proceeding

of

the

conviction.

511

Compare
_______

U.S. 767,

784

tax on dangerous drugs sought in

initiated

proceeding

in

subsequently
____________

which

to

the

defendants

were

convicted violates the prohibition against double jeopardy; a

second

punishment

"must

be

imposed

during

the

first

prosecution or not at all").

3.

Appellant's

claims

regarding

the

alleged

ineffective assistance rendered by his trial counsel were not

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presented

to the district

therefore

will

appeal.

Cir. 1990)

not consider

See Dziurgot
___ ________

does not provide

them

for

v. Luther, 897
______

(per curiam).

Fishing Corp.
_____________

court in the

2255 motion.

the first

F.2d 1222,

Appellant's ignorance of

an excuse for this default.

time

We

on

1224 (1st

the law

See Eagle Eye

___ _________

v. United States Dep't of Commerce, 20

_________________________________

F.3d

503, 506 (1st

is

not

Cir. 1994) ("the right

a license

procedural and

not

to

comply

substantive law")

of self-representation

with relevant

rules

(internal quotation

of

marks

and citations omitted).

4.

but one of

of the

In any event, appellant's failure to assert all

his claims in his first

writ under

Again, appellant's

does

not

omission.

(5th Cir.

external

687-88

2255 motion is an abuse

McCleskey v. Zant,
_________
____

pro se status

constitute

"cause"

See, e.g., Saahir

___ ____ ______

1992) (ignorance

467 (1991).

and ignorance

sufficient

to

of the

excuse

v. Collins, 956 F.2d

_______

of the law

impediment); Rodriguez
_________

(10th Cir. 1991)

499 U.S.

v.

is not

this

115, 118

an objective

Maynard, 948
_______

(where the factual

law

F.2d 684,

and legal bases

for the new claims existed when the first habeas petition was

filed, petitioner's

those

claims does

ignorance of

not amount

would failure to consider these

fundamental

the legal

to cause).

Nor,

obviously,

claims on appeal amount to a

miscarriage of justice.

States, 967 F.2d 715, 719

______

significance of

See Andiarena v. United

___ _________
______

(1st Cir. 1992) (per curiam) (this

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narrow

exception

applies

only

where

constitutional

violationlikely caused the conviction of an innocent person).

The one

first

claim that

2255 motion

entrapment and

connection

appellant did

-- the government's

counsel's alleged

therewith -- cannot

present in

alleged sentencing

ineffective assistance

be raised again

on the merits in that

2255

9(b)

See Rule
___

Section 2255 Cases ("[a]

the

first

Rules Governing

second or successive motion

dismissed if the judge finds that

different

of

in

because the

district court disposed of it

proceeding.

the

may be

it fails to allege new

or

grounds for relief and the prior determination was

on the merits").

5.

It

follows that

the district

abuse its discretion in not holding a hearing

forfeiture claims.

court did

not

on appellant's

See United States v. McGill, 11 F.3d 223,

___ _____________
______

225-26 (1st Cir. 1993).

The judgment of the district court is affirmed.

________

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