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Bucci v. United States

United States Court of Appeals, First Circuit

December 21, 2015

ANTHONY BUCCI, Petitioner, Appellant,
v.
UNITED STATES, Respondent, Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. William G. Young, U.S. District Judge.

Inga L. Parsons for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Torruella, Lynch, and Thompson, Circuit Judges.

OPINION

Page 24

LYNCH, Circuit Judge.

Anthony Bucci is a convicted drug trafficker, now incarcerated and serving a sentence of more than eighteen years. He appeals the district court's October 29, 2013, denial of his 28 U.S.C. § 2255 petition, which claimed ineffective assistance of counsel by his trial counsel.[1] Because the petition does not meet the requirements that Congress set out for a second or successive § 2255 petition to be heard, we affirm the denial.

I.

The facts underlying Bucci's conviction are detailed in previous published opinions. See Bucci v. United States, 662 F.3d 18, 20-21 (1st Cir. 2011); United States v. Bucci, 525 F.3d 116, 121-25 (1st Cir. 2008).

Page 25

On April 12, 2006, Bucci was convicted by a jury of conspiracy to distribute, and to possess with intent to distribute, cocaine; possession of cocaine with intent to distribute; and using or carrying a firearm during and in relation to a drug trafficking crime. Bucci was sentenced to 252 months in prison, of which 168 months were for the drug charges and a consecutive term of 84 months was for the firearm charge.[2] This court affirmed on direct appeal. Bucci, 525 F.3d at 134.

On May 12, 2009, Bucci filed a first § 2255 petition, arguing that there had been an improper courtroom closure in violation of the Sixth Amendment, prosecutorial misconduct, and ineffective assistance of counsel for failure to produce a promised witness at trial and for failure to object to the consecutive sentence. The district court denied his petition. Bucci v. United States, 677 F.Supp.2d 406, 420 (D. Mass. 2009). This court affirmed the denial of Bucci's petition. Bucci, 662 F.3d at 40.

On June 18, 2013, Bucci filed a second motion captioned as a § 2255 petition, arguing that new testimony elicited from his trial counsel during his co-conspirator's habeas proceedings showed that Bucci's first § 2255 petition had been improperly denied. The district court denied the motion. The district court suggested that the filing should actually have been a motion for relief from judgment under Federal Rule of Civil Procedure 60(b) because it attacked the outcome of the prior § 2255 proceeding rather than the validity of the conviction. It held that the motion did not meet the standards required of either a Rule 60(b) motion or a second or successive § 2255 petition. We summarily affirmed. Bucci v. United States, No. 13-2108 (1st Cir. Apr. 13, 2015).

The ยง 2255 petition at issue in this appeal was filed on October 28, 2013. Bucci bases his petition on what he claims is newly discovered evidence that his trial counsel failed to pursue a ...


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