December 8, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1849
MAURICE F. ALVES,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Maurice F. Alves on brief pro se.
Donald K. Stern, United States Attorney, and John M. Griffin,
Assistant United States Attorney, on brief for appellee.
Per Curiam. We have reviewed the parties' briefs and
the record on appeal. Appellant's retroactivity argument is
clearly foreclosed by our decision in United States v.
Havener, 905 F.2d 3 (1st Cir. 1990) (holding that Amendment
266 was not retroactive). His complaint regarding the Fed.
R. Crim. P. 32(a)(1) colloquy does not appear cognizable in a
2255 motion. See Hill v. United States, 368 U.S. 424
(1962) (holding that a failure to follow the formal
requirements of Rule 32(a) is not of itself an error
cognizable pursuant to 2255). In any event, that precise
argument also has been considered previously and rejected.
United States v. Manrique, 959 F.2d 1155, 1157-58 (1st Cir.
1992) (rejecting claim that district court must personally
ask defendant whether (a) he had the opportunity to read the
PSR, (b) he had discussed report with counsel, and (c) he
wished to challenge the report). The district court did not
abuse its discretion in giving the government an enlargement
of time in which to respond to the 2255 motion.
The remainder of appellant's claims concern the
application of the sentencing guidelines. Neither of these
claims appears to implicate "a fundamental defect which
inherently results in a complete miscarriage of justice," so
as to permit review on collateral attack. Knight v. United
States, No. 94-1374, slip op. at p. 6 (Oct. 20, 1994)(quoting
Hill v. United States, 368 U.S. at 428). In any event, these
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claims could have been raised on direct appeal and appellant
has not shown cause and prejudice for failing to do so. Id.
at p. 10.
The request for oral argument is denied.
Affirmed.
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