Torres-Lopez v. United States

February 23, 1995

                    [NOT FOR PUBLICATION]
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 94-1876 

                     ANGEL TORRES-LOPEZ,

                    Plaintiff, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

     [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
                                                                    

                                         

                            Before

                    Torruella, Chief Judge,
                                                      
              Selya and Boudin, Circuit Judges.
                                                          

                                         

Angel Torres-Lopez on brief pro se.
                              
Guillermo Gil, United States Attorney,  and Salixto Medina-Malav ,
                                                                             
Deputy Chief,  Criminal Division, United States  Attorney's Office, on
brief for appellee.

                                         


                                         

          Per  Curiam.  Petitioner Angel Torres-Lopez appeals
                                 

the denial of a motion pursuant to 28 U.S.C.   2255 to vacate

his judgment of  conviction.  After  carefully reviewing  the

record  and the briefs of the parties, we affirm the judgment

of the district court for the reasons stated in its Opinion &

Order dated July 14, 1994.  We add only two comments.

          1.   On appeal, petitioner avers  that the district

court abused its discretion  in failing to hold a  hearing on

the    2255 petition.   First, petitioner did  not raise this

issue below.  In any  event, we do not find any merit  to it.

Where a    2255 motion  arguably is adequate  on its face,  a

hearing  is  not necessary  if  the  motion is  "conclusively

refuted as to the  alleged facts by the files  and records of

the case."  United States v.  DiCarlo, 575 F.2d 952, 954 (1st
                                                 

Cir.), cert. denied, 439 U.S. 834 (1978) (internal  quotation
                               

marks  and citation omitted).   The motion here involves only

the  application  of certain  principles  of  law to  largely

undisputed  facts.   Thus, the  rule that material  issues of

fact may not be decided without an evidentiary hearing is not

applicable.  See id.   "Moreover, if the claim is  based upon
                                

facts with which the  trial court, through . .  . observation

at trial, is familiar, the court may make findings without an

additional hearing . . . . "  Id.
                                             

          2.    This  brings  us  to  the  second   issue  --

petitioner's assertion  that the district  court judge should

have recused himself.  Again,  petitioner did not raise  this

claim below.   The only  basis for this  claim is that  the  


2255  motion  required  the  judge  to  make  a  new  factual

determination on a question  as to which he already  had made

an allegedly erroneous finding.  "Prior adverse rulings alone

cannot,  of course,  be the  basis for  a motion  to recuse."

Panzardi-Alvarez  v. United  States, 879  F.2d 975,  984 (1st
                                               

Cir. 1989), cert. denied,  493 U.S. 1082 (1990).  It  also is
                                    

not sufficient  to  merely  allege that  a  judge  is  biased

because he had been  involved in petitioner's trial.   Id. at
                                                                      

985.  Aside from the claim of the allegedly erroneous ruling,

petitioner fails  to present  any facts that  would establish

bias on the  judge's part.  Finally, it is  appropriate for a

judge to determine that a   2255 motion can be denied without

a hearing even if he was the judge at trial.  See id.
                                                                 

          The judgment of the district court is affirmed.
                                                                    

                             -3-