The opinion of the court was delivered by: POLLACK
MILTON POLLACK, District Judge.
This is a motion under 28 U.S.C. § 2255 to vacate a sentence on a conviction for substantive narcotic offenses on the ground that a conspiracy count barred by the Double Jeopardy Clause was improperly and prejudicially joined in the Indictment and tried with the substantive offenses on which petitioner was convicted.
For the reasons shown below, the petition must be denied.
Vincent Pacelli, Jr. had been convicted in the past six years by juries in the Southern District of New York, twice for separate narcotics offenses which occurred in 1971 and the third time for violation of the civil rights of Patsy Parks -- a potential witness in the narcotics cases -- by killing her.
The sentences which he received are consecutive terms of imprisonment of 20 years, 15 years and life imprisonment. On this application, Pacelli seeks to have vacated the 15 year term imposed in 1974 in the second of the cases mentioned.
1. In February 1972 Pacelli was sentenced on his conviction in federal court, Southern District of New York, of participating in a conspiracy to violate the narcotics laws and of two substantive narcotic violations. He was sentenced to a total of 20 years imprisonment and fined. The duration of the conspiracy charged was from January 1 to June 14, 1971. The overt acts were alleged to have taken place in May 1971. The conviction was affirmed; United States v. Pacelli, 470 F.2d 67 (2d Cir. 1972), cert. denied, 410 U.S. 983, 36 L. Ed. 2d 178, 93 S. Ct. 1501 (1973). Pacelli is currently serving this sentence.
2. In March 1974 Pacelli was sentenced on his conviction in the Southern District of New York on one count of participating in another narcotics conspiracy and of two new substantive narcotics counts. He was sentenced on each of the three counts to 15 years, the sentences to run concurrently with each other but consecutive to the 1972 sentences. The conspiracy was alleged to have commenced January 1, 1971 and to have operated to September 23, 1973. Three overt acts involving Pacelli were alleged, viz., in September, November and December 1971. On appeal, Pacelli contended that he had been convicted twice of the same offense, in that his conviction on the conspiracy count in 1974 and his conviction of conspiracy in 1972 were in fact on one and the same conspiracy. The Court of Appeals held that the conspiracies overlapped and that the government had not rebutted the presumption of sameness of the conspiracies charged in the two prosecutions and reversed the 1974 conviction on the conspiracy count.
On the same appeal, Pacelli also challenged his conviction on the two substantive counts, Count Two, of distributing heroin in September 1971, and Count Six, of possessing heroin in November 1971. He claimed that his conviction on these counts violated his rights of due process and freedom from double jeopardy. However, the Court of Appeals found these claims to be wanting in merit and affirmed the convictions on the substantive counts. United States v. Mallah, 503 F.2d 971, 981-90 (2d Cir. 1974), cert. denied, 420 U.S. 995, 43 L. Ed. 2d 671, 95 S. Ct. 1425 (1975).
3. On February 28, 1975 Pacelli was sentenced on his conviction in the Southern District of New York of conspiring to deprive Patsy Parks of her Civil Rights by killing her. He was sentenced to Life Imprisonment, to run consecutive to the sentences on the 1972 and 1974 convictions. On appeal, the conviction was affirmed, United States v. Pacelli, 521 F.2d 135 (2d Cir.), cert. denied, 424 U.S. 911, 47 L. Ed. 2d 314, 96 S. Ct. 1106 (1976).
The appellate review herein
At the threshold it is to be noted that Pacelli exonerates his failure to argue on his direct appeal that Counts Two and Six were infected by the joint trial therewith of the barred conspiracy count by the comments, "There is only so much one can put in a brief" and that the Court of Appeals' decision sustaining the double jeopardy contention was not foreseeable. In response to the government's contention that he had available to him the "orderly appellate procedure" of a petition for a rehearing and deliberately by-passed that avenue for presenting the issue, he asserts that he was not obligated to ask for a rehearing; that, he says, does not substitute for § 2255. In short, Pacelli contends that the Court of Appeals failed, in reversing the conspiracy conviction, to consider that appropriate relief required reversal on all three counts, that this is the first time he has raised the issue and that his point is of constitutional dimension.
The government asserts (1) that no constitutional question is presented by Pacelli, and (2) that Pacelli seeks by a § 2255 proceeding to obtain a second piecemeal review on an alternative theory, having already availed himself of appellate review of a double jeopardy contention on one theory, and having failed to petition for rehearing to ...