decided: October 31, 1979.
UNITED STATES OF AMERICA
NICHOLAS PALUMBO, APPELLANT.
Before Adams, Rosenn and Weis, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
This is an appeal from a denial by the district court of a motion by Nicholas Palumbo, a federal prisoner, for collateral relief under 28 U.S.C. § 2255 (1976).*fn1 Palumbo contends that the indictment under which he was charged and convicted incorrectly stated that the drug Percodan*fn2 is a Schedule II controlled substance within the meaning of 21 U.S.C. § 812(c) and 21 C.F.R. § 1308.12 (1976).*fn3 The district court declined to address the merits of this contention, holding that Palumbo was barred from relitigating the issue because it had been fully adjudicated at Palumbo's trial and on direct appeal to this Court.
Palumbo also contends that he was denied his Sixth Amendment right to effective assistance of counsel at his trial and on his direct appeal because his attorney failed to argue that the indictment was deficient inasmuch as it incorrectly stated that Percodan was a Schedule II substance. The district court rejected this claim, holding that the record demonstrated that Palumbo's counsel professionally and competently presented the deficiency issue. After considering both of Palumbo's contentions, we affirm the decision of the district court.
Palumbo and six codefendants were charged in a five count indictment with conspiracy to possess Percodan with intent to distribute and conspiracy to distribute Percodan in violation of 21 U.S.C. § 846(a) (1976),*fn4 and with distribution of Percodan in violation of 21 U.S.C. § 841(a)(1) (1976).*fn5 A jury found Palumbo guilty of conspiracy, but acquitted him on the four substantive counts. The trial judge sentenced him to fifteen years in prison, followed by three years of special parole. Palumbo appealed the judgment of conviction, and a panel of this Court affirmed by judgment order. United States v. Palumbo, 568 F.2d 771 (3d Cir.), Cert. denied, 436 U.S. 926, 98 S. Ct. 2819, 56 L. Ed. 2d 768 (1978).
At trial and on appeal, Palumbo's counsel contended that the indictment incorrectly alleged that Percodan was a Schedule II substance. After attempting to establish that the chemical composition of Percodan placed it in the Schedule III category,*fn6 Palumbo argued that trial for possession and conspiracy to possess Percodan would amount to an unconstitutional amendment of the indictment.*fn7 The defense asserted that Palumbo, in effect, would be tried for possession of a Schedule III substance, but indicted for a different crime possession of a Schedule II substance.*fn8 After listening to a chemist employed by the Drug Enforcement Administration testify that Percodan contains oxycodone, a Schedule II substance,*fn9 the district judge held, as a matter of law, that Percodan was a Schedule II narcotic.
On his direct appeal, Palumbo challenged the district court's determination and again asserted that the trial judge had unconstitutionally amended the indictment by instructing the jury that Percodan was a Schedule II substance.*fn10 This Court rejected Palumbo's contention and affirmed the judgment of conviction.
Palumbo claims on the present appeal, as he did in the § 2255 hearing in the district court, that the indictment was deficient because it incorrectly stated that Percodan is a Schedule II substance. As we have just indicated, the question whether Percodan is a Schedule II narcotic was adjudicated at Palumbo's trial and by a panel of this Court on his direct appeal. Because Palumbo has received a full hearing by the federal courts on this legal issue, we hold that, on the facts present here, the district court did not err in declining to consider again the question in the § 2255 hearing.
The Supreme Court has recognized two purposes underlying federal habeas corpus review.*fn11 First, "(t)he provision of federal collateral remedies rests . . . fundamentally upon a recognition that adequate protection of constitutional rights relating to the criminal trial process requires the continuing availability of a mechanism for relief." Kaufman v. United States, 394 U.S. 217, 226, 89 S. Ct. 1068, 1074, 22 L. Ed. 2d 227 (1969). Second, federal collateral review affords persons in custody "(t)he opportunity to assert federal rights in a federal forum." Id. "The right then is not merely to a federal forum but to full and fair consideration of constitutional claims." Id. at 228, 89 S. Ct. at 1075.
Palumbo has had a full and fair hearing in two federal tribunals the district court and the court of appeals of his Fifth Amendment claim that the proof introduced at trial varied substantially from the terms of the indictment. The record and briefs from his original appeal demonstrate that his attorney vigorously argued his constitutional claim. A panel of this Court heard and decided his contentions. Palumbo has already received the benefit of federal judicial review of his constitutional claims. To permit relitigation here of the issues previously decided by this Court, therefore, would not further the purposes of § 2255 and would result in wasteful duplication of the federal judicial review process.*fn12
Accordingly, we hold that, in the absence of newly discovered evidence that could not reasonably have been presented at the original trial,*fn13 a change in applicable law,*fn14 incompetent prior representation by counsel,*fn15 or other circumstances indicating that an accused did not receive full and fair consideration of his federal constitutional and statutory claims, a § 2255 petitioner may not relitigate issues that were adjudicated at his original trial and on direct appeal.*fn16 Because none of the four exceptions is present here, we conclude that the district court did not err in declining to address once again Palumbo's Fifth Amendment claim in the § 2255 proceeding.*fn17
Palumbo's second contention is that he should be released from custody and granted a new trial because he did not receive effective assistance of counsel at his original trial and on his direct appeal. He maintains here that his attorney failed to argue that the proof varied substantially from the terms of the indictment because Percodan is, in fact, a Schedule III substance, while the indictment alleged conspiracy and possession of a Schedule II substance.
We have reviewed both the trial transcript as well as the briefs submitted by Palumbo on his direct appeal and agree with the district court that Palumbo received competent and professional legal assistance. His attorney attempted to establish that the presence of oxycodone does not make Percodan a Schedule II substance and asserted that the proof of possession of Percodan therefore varied from the terms of the indictment.*fn18 In our view, Palumbo's counsel at his original trial and on appeal argued this issue vigorously, professionally, and, indeed, in much the same manner as did his attorney on this appeal. Because we conclude that Palumbo's original counsel exercised "the customary skill and knowledge which normally prevaile(d) at the same time and place" of his original trial and appeal*fn19 the standard for measuring effective assistance of counsel claims the judgment of the district court will be affirmed.