Unpublished Disposition, 931 F.2d 61 (9th Cir. 1991)

MEMORANDUM^** 

John Joseph Vaccaro was convicted of racketeering. United States v. Vaccaro, 602 F. Supp. 1132 (D. Nev. 1985), aff'd, 816 F.2d 443 (9th Cir.), cert. denied, 484 U.S. 928 (1987). He appeals the denial of his habeas petition, contending his trial was flawed because the district court refused to inspect a presentence report on Ross Durham, the government's chief witness against Vaccaro, to determine if it contained Brady material. Vaccaro claims that Durham's presentence report may have contained material that would have permitted him to attack Durham's credibility. The district court concluded that the petition was successive and, alternatively, that any material contained in the report was merely cumulative. We affirm on both grounds.

Rule 9(b) of the Rules Governing Section 2255 Proceedings provides, in part, that a "successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits." A petition "is successive if the basic thrust or 'gravamen' of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments." Molina v. Rison, 886 F.2d 1124, 1129 (9th Cir. 1989). " [A] mere shift in the legal arguments supporting a particular ground is not sufficient to create a new ground for relief." Id.

Although the legal argument raised in Vaccaro's habeas petition is different from the one raised in his direct appeal, the gravamen of both arguments is the same. In the direct appeal, we assessed that " [t]he central concern is whether the jury was given a fair opportunity to assess Durham's credibility. Since it was, we find no possible prejudice to [Vaccaro]." Vaccaro, 816 F.2d at 451. In this case, Vaccaro's brief states that " [t]he central concern is whether the jury was given a fair opportunity to assess Durham's credibility." The district court did not err in concluding that Vaccaro's petition was successive.

A district court need not release material that is cumulative. United States v. Anzalone, 886 F.2d 229, 233 (9th Cir. 1989) (witness' presentence report). Here, the district court judge, who also presided at Vaccaro's trial, reasoned that

[e]ven if Durham's presentence investigation report did indicate he misrepresented his financial condition to the probation officer such would have added little or nothing to the consideration of the issue of his credibility by the trial jury. The contention at trial was that Durham had lied directly to the Court at the plea hearing. Whether Durham lied to the probation officer in the preparation of the presentence report would have added nothing additional of substance to the trial jury's consideration of Durham's credibility. The additional information that Durham may have misrepresented his financial condition to a probation officer would have been merely cumulative to the claim of direct misrepresentation to the judge in open court at the plea and would not have altered the outcome of the trial.

Not only is that reasoning persuasive, it is supported by our conclusion in Vaccaro's direct appeal that "the jury was given a fair opportunity to assess Durham's credibility." Vaccaro, 816 F.2d at 451. There was no constitutional error.

AFFIRMED.