The opinion of the court was delivered by: KOELTL
JOHN G. KOELTL, District Judge:
Dimas Hilario Zorilla brings this petition pro se for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255. On May 22, 1990, following a two-day jury trial, Zorilla was convicted of conspiring to distribute and to possess with an intent to distribute cocaine in violation of 21 U.S.C. § 846, and possessing with intent to distribute cocaine within 1000 feet of a school in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 845a, and 18 U.S.C. § 2. On July 26, 1990, Zorilla was sentenced by District Judge Charles M. Metzner to concurrent prison terms of 151 months. Zorilla's conviction was affirmed by the Court of Appeals for the Second Circuit by summary order on February 6, 1991.
The evidence at trial established that on February 5, 1990 Zorilla helped to set up the sale of nine kilograms of cocaine to Ramon Rodriguez, a Drug Enforcement Administration ("DEA") informant. Zorilla had a taped telephone conversation with Rodriguez at about 8:30 p.m. that night to arrange for Rodriguez to obtain a sample of cocaine from Zorilla at Zorilla's tire shop in New York City. At about 9:00 p.m. Rodriguez went to the tire shop, followed by two DEA agents, John McKenna and J. Erik Stangeby. Rodriguez obtained the cocaine sample, left the shop, and delivered the sample to Agent McKenna. Later that evening, Zorilla paged Rodriguez, who returned to the shop followed by the two DEA agents. Two unidentified men then arrived at the store, one carrying a large brown shoulder bag. The man with the bag entered the tire shop, emerged a short time thereafter, spoke briefly to the other man who had remained outside, and then left. The man who had remained outside left next, followed by Zorilla and Rodriguez. A short time later, Agent McKenna arrested Zorilla. The brown shoulder bag was found in the basement of Zorilla's tire shop. The bag was found to contain nine kilograms of cocaine.
The Government's evidence at trial included the testimony of agents McKenna and Stangeby as well the recording of the telephone conversation between Zorilla and Rodriguez. Rodriguez did not testify. Zorilla's defense at trial consisted principally of denying that he knew there were drugs involved in the transaction with Rodriguez. Zorilla testified in his own defense, confirming much of what transpired on February 5, 1990, although denying that he knew that cocaine was the subject of the transaction.
Zorilla now seeks to vacate his conviction on the basis of the Government's alleged failure to disclose certain alleged wrongdoing regarding the two DEA agents who testified against Zorilla at trial in violation of the Government's disclosure obligations under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) and Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972).
Zorilla's claim is barred because this petition is his second and is based on claims that could have been brought in his first petition. The failure to have brought the claims in the earlier petition constitutes an abuse of the writ, absent a showing of both cause for the default and prejudice from the error alleged or a fundamental miscarriage of justice. McCleskey v. Zant, 499 U.S. 467, 470, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991) ("The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus."); Femia v. United States, 47 F.3d 519, 523-24 (2d Cir. 1995) (abuse of the writ analysis explained in McClesky for § 2254 petition applies equally to § 2255 petitions). On the first petition, which was filed August 30, 1991, Zorilla was represented by counsel. That petition asserted a claim that Zorilla was not sentenced properly under Fed. R. Crim. P. 32(c)(3) and also asserted a claim of ineffective assistance of trial counsel. Judge Metzner denied the petition on the merits. See United States v. Zorrilla, 90 Cr. 90, 1991 U.S. Dist. LEXIS 13709, 1991 WL 206274 (S.D.N.Y. Sept. 30, 1991).
Zorilla has not established "cause" for failing to include the current allegations in his original petition. The cause prong of the McClesky test "requires the petitioner to show that 'some objective factor external to the defense impeded counsel's efforts' to raise the claim," in the first petition. McClesky, 499 U.S. at 493 (quoting Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)). See Femia, 47 F.3d at 524. The present petition was filed four years after the first petition and includes a single claim based on the Government's failure to disclose alleged misconduct of the two DEA agents who testified against Zorilla, both of whom were members of Group 33, a DEA unit which came under scrutiny for various improprieties arising from cases unrelated to Zorilla's. These claims were not included in the first petition, as Zorilla concedes: "The subject matter of this motion has never been brought before any court by Zorilla." (Pet.'s Mem. at 1.) Zorilla alleges that he became aware of the information sometime after August 1993. (See Zorilla Aff. P 4.) Attached to his petition, however, are copies of newspaper articles about DEA Group 33 that were published by the New York Daily News and the Philadelphia Daily News on August 18 and 19, 1991. Thus, it is plain from the petition that reports about Group 33 were circulating in the press long before the present petition was filed, and the particular stories Zorilla now relies upon as support for his petition were actually printed ten days before his first § 2255 petition was filed. Zorilla offers no excuse for his counsel's failure to have presented the issues now before the Court in the first petition. Thus, Zorilla has not shown cause for the failure to have raised his current claim in his first § 2255 petition. Because a petitioner is required to show both cause and prejudice, the failure to show cause is fatal to this petition.
Moreover, Zorilla has not shown "actual prejudice" from the error he alleges. As the Court of Appeals recently explained, "actual prejudice" requires, "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Femia, 47 F.3d at 524 (quoting United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)). Zorilla has not begun to show actual prejudice.
There is no basis to believe that the Zorilla's conviction was based on the Government's knowing use of perjured testimony. Indeed, as the Court of Appeals found in affirming his conviction, Zorilla's own testimony, corroborated by his incriminating tape-recorded conversation, supported the details of his participation in the drug conspiracy. The issue he disputed at trial was whether he knew the transaction involved narcotics. There is no basis to doubt the truthfulness of the trial testimony of the agents as corroborated by Zorilla himself.
While Zorilla argues that the Government violated its obligation under Brady and Giglio by failing to disclose the alleged wrongdoing of the agents who testified, those allegations first surfaced after the trial. The information Zorilla claims should have been disclosed relates to questions raised about the two agents, John McKenna and J. Erik Stangeby, members of Group 33, a DEA unit whose members were investigated as a result of certain improprieties identified in August 1990 by Judge Kenneth Conboy in United States v. Lara, 89 Cr. 1006 (S.D.N.Y. 1990). Agent McKenna himself testified in the Lara case, although Agent Stangeby did not. The Government indicates that it first became aware that reports or statements by DEA agents in the Lara case may have been false or inaccurate in late ...