Appendix — Gaines v. United States (No. 05-1317)

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

ENTERED JANUARY 12, 2006

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 01-2678

CORWIN GAINES,

Petitioner, Appellant,

V.

UNITED STATES,

Respondent, Appellee.

Before

Lynch, Lipez and Howard

Circuit Judges.

JUDGMENT

Entered: January 12, 2006

Petitioner Corwin Gaines appeals from the judgment of

the district court denying his motion filed under 28 U.S.C.

§ 2255, and the government has filed a motion for summary

disposition. We have carefully reviewed petitioner’s brief,

the government's motion, and the record and agree with the

government that summary disposition is appropriate in this

case.

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Appendix A

First, neither Apprendi v. New Jersey, 530 U.S. 466

(2000), nor Blakely v. Washington, 542 U.S. 296 (2004), are

retroactively applicable to cases on collateral review. See

Sepulveda v. United States, 330 F.3d 55, 57, 59-63 (Ist Cir.

2003) (holding that Apprendi cannot be applied retroactively

to cases on collateral review); Cirilo-Munoz v. United States,

404 F.3d 527, 532-33 (1st Cir. 2005) (holding the same

regarding Blakely).

Second, the district court was not required to provide

discovery or an evidentiary hearing on petitioner’s ineffective

assistance of counsel claims, neither of which, we note, was

supported by any factual allegations. As for discovery, it is

plain that petitioner essentially wished to go on a fishing

expedition in the hopes that he might net some facts to

support his claims. Such a speculative hope, however, is an

insufficient basis on which to premise discovery. See

DeVincent v. United States, 632 F.2d 145, 146 (1st Cir. 1980)

(where the petitioner was “merely speculating” and had no

proof that the full grand jury had not voted on the actual

terms of the indictment against him, the district court was

not required to permit a “fishing expedition” so that such a

claim possibly could be established). For the same reasons,

the district court also was not required to hold an evidentiary

hearing on these conclusory claims. See David v. United

States, 134 F.3d 470, 477-78 (ist Cir. 1998) (affirming the

denial of an evidentiary hearing where the § 2255 claim

“is inadequate on its face, or ... the movant’s allegations

need not be accepted as true because they state conclusions

instead of facts”) (internal quotation marks and citations

omitted).

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Appendix A

The judgment of the district court is summarily affirmed.

See Local Rule 27(c). All pending motions are denied as

moot.

By the Court:

Richard Cushing Donovan, Clerk.

By: MARGARET CARTER

Chief Deputy Clerk.

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APPENDIX B — OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

MASSACHUSETTS DATED SEPTEMBER 30, 2002

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 00-CV-10446-GAO

CORWIN GAINES,

Petitioner

v.

UNITED STATES,

Respondent.

ORDER GRANTING APPLICATION FOR

CERTIFICATE OF APPEALABILITY

Sepiember 30, 2002

O’TOOLE, D.J.

This Court denied the petitioner’s motion under

28 U.S.C. § 2255 to vacate his sentence, and he now applies

for a certificate of appealability as required by 28 U.S.C.

§ 2253(c) and Fed.R.App.P. 22(b). For the following reasons,

the application is GRANTED.

The application esxumerates fifteen issues that the

petitioner seeks to present on appeal from the denial of the

Sa

Appendix B

§ 2255 motion, but the issues really fall into three groups:

claims of ineffective assistance by the petitioner’s trial

counsel, claims seeking to take advantage of the Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466

(2000), and claims regarding procedural rulings concerning

the disposition of his § 2255 motion.

On direct appeal, see United States v. Gaines, 170 F.3d

72 (1st Cir. 1999), the petitioner argued that the trial court

had committed error in several different evidentiary rulings.

His judgment of conviction was affirmed. In his § 2255

motion, he recast those arguments to argue that his trial

counsel had rendered constitutionally ineffective assistance

by failing to make a presentation sufficient to forestall the

trial court’s rulings on the same issues presented in the direct

appeal. He also claimed ineffective assistance of trial counsel

in failing to advise him properly concerning an alleged plea

offer from the government. In denying his § 2255 motion, ——

this Court rules that, because he had not presented the

ineffective assistance claims on direct appeal when he was

represented by new counsel, he was procedurally foreclosed

from raising them for the first time in a motion under § 2255.

This Court also rejected the petitioner’s Apprendi claims,

ruling that (1) the Apprendi rule has not been made retroactive

by the Supreme Court and (2) even if it applied, it was not

violated by the imposition of consecutive sentences under

§ 5G1.2(d) of the United States Sentencing Guidelines.

Finally, this Court denied his motion for discovery and

for an evidentiary hearing in aid of his § 2255 motion.

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Appendix B

While some circuits have held that claims of ineffective

assistance of trial counsel can be procedurally defaulted by

failure to present them in a direct appeal when the petition

was represented by new counsel on appeal and when the

alleged errors are discernible in the trial record, see Billy-

Eko v. United States, 8 F.3d 111, 115-116 (2d Cir.1993), the

question has not been definitively answered in this circuit.

Accordingly, the question is debatable by jurists of reason,

and it is appropriate for appellate consideration. The

certificate is GRANTED as to that issue, as well as to the

related issues whether discovery and an evidentiary hearing

ought to have been allowed.

In an unpublished opinion, Saccoccia v. United States,

42 Fed.Appx. 476, 482, 2002 WL 1734169 at **4 (Ist Cir.

2002), a panel of the Court of Appeals resolved the Apprendi

issue presented against the petitioner’s position. If this had

been a precedential decision, there would be no need for

further appellate consideration of the question. Since

precedential status was not given to the Saccoccia ruling,

however, the matter must still be considered to be an open

question in this circuit. Accordingly, the certificate of

appealability is GRANTED as to this issue as well.

Itis SO ORDERED.

September 30, 2002 Sf [illegible]

Date District Judge