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[NOT FOR PUBLICATION]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.
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