April 8, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1902
ABEL ROJAS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
No. 95-1906
EDUARDO A. ROBINSON-MUNOZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Abel Rojas on brief pro se.
Eduardo A. Robinson on brief pro se.
Guillermo Gil, United States Attorney, Edwin O. Vazquez,
Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior
Litigation Counsel, on brief for appellee.
Per Curiam. Eduardo Robinson-Munoz and Abel Rojas
appeal from the district court's summary denial of their
motions under 28 U.S.C. 2255. We affirm.
I. Robinson
Robinson challenges his conviction after a jury
trial of aiding and abetting the possession, with intent to
distribute, of marijuana aboard a vessel, 46 U.S.C.App.
1903(a), (c)(1)(A) & 18 U.S.C. 2. Specifically, he argues
that the vessel ("the Delfin") was not subject to United
States jurisdiction because it was not "a vessel without
nationality." We rejected that argument on direct appeal.
In United States v. Robinson-Munoz, 961 F.2d 300 (1st Cir.
1992), we held that the government's presentation of a
certification of the Secretary of State indicating that the
Colombian government had denied the Delfin captain's claim of
Colombian registry "prove[d] jurisdiction beyond a reasonable
doubt." Id. at 305. Robinson again challenged the United
States' jurisdiction over the Delfin in his first 2255
motion. The district court ruled that the issue had already
been decided on direct appeal and could not be relitigated
under 2255. Robinson-Munoz v. United States, 819 F. Supp.
1136, 1142 (D. Puerto Rico 1993). In his second 2255
motion, Robinson relied upon new evidence to challenge the
United States' jurisdiction over the Delfin. Specifically,
Robinson relied upon a letter dated May 10, 1993 from the
-2-
Secretary General of the Colombian Department of National
Defense ("the May 10, 1993 letter"). The letter stated, in
relevant part, as follows:
having reviewed the files of the General
Command of the Armed forces and of the
National Navy, no document whatsoever was
found, of authorization for the boarding
of the motor vessel "DELFIN" on the 13th
of October, 1990.
Robinson appeals from the district court's summary dismissal
of his second 2255 motion. On appeal, he seeks to
introduce yet more new evidence to show that the
certification of the Secretary of State was fraudulently
prepared (i.e., no denial of registry was ever given by the
Colombian government) and, therefore, that the Due Process
Clause requires that his conviction and sentence be vacated.
We affirm.
The district court did not err in dismissing the
motion without holding an evidentiary hearing. A " 2255
motion may be denied without a hearing as to those
allegations which, if accepted as true, entitle the movant to
no relief, or which need not be accepted as true because they
state conclusions instead of facts, contradict the record, or
are 'inherently incredible.'" Shraiar v. United States, 736
F.2d 817, 818 (1st Cir. 1984) (citations omitted). In
addition, "when, as in this case, a petition for federal
habeas relief is presented to the judge who presided at the
petitioner's trial, the judge is at liberty to employ the
-3-
knowledge gleaned during previous proceedings and make
findings based thereon without convening an additional
hearing." United States v. McGill, 11 F.3d 223, 225 (1st Cir.
1993).
The relevant evidence before the district court
when it ruled upon the 2255 motions consisted of the May
10, 1993 letter. At most, that letter indicates that the
Colombian authorities never gave the Coast Guard officials
permission to board the Delfin. Even accepting the truth of
that statement, it does not entitle Robinson to relief. In
this case, jurisdiction was based upon the Colombian
government's denial of registry. The denial of registry was
proved by a certification by the Secretary of State. The May
10, 1993 letter does not even contradict, much less disprove,
the statements made in the certification.
The document that appellants sought to introduce as
"Supplemental Pleadings on Appeal" -- a letter dated February
8, 1996, in which the Colombian authorities denied the
existence of a General Rodriquez at the time that he
allegedly denied registry -- was never before the district
court. The argument that it constitutes newly discovered
evidence and establishes a violation of the Due Process
Clause entitling Robinson to 2255 relief cannot be raised
for the first time on appeal. "It is a bedrock rule that
when a party has not presented an argument to the district
-4-
court, she may not unveil it in the court of appeals." United
States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992).
(Appellants' reliance upon Fed. R. Civ. P. 15(d) is misplaced
because they do not seek to supplement a pleading but to
introduce new evidence in support of a 2255 motion on
appeal.) "[A]ppellate courts retain the power to dispense
with the raise-or-waive rule in order to avoid a gross
miscarriage of justice." Slade, 980 F.2d at 31. This is not
such a case, however. Robinson has failed to demonstrate
that the new evidence "is 'so compelling as virtually to
insure appellant's success.'" Id. at 31.
II. Rojas
Rojas pled guilty and has never contested the
validity of his guilty plea. We note initially that although
the issue is not free from doubt, "the better view may be
that a valid guilty plea, as 'an admission of all the
elements of a formal criminal charge,' admits even those
allegations which form the factual predicate for federal
jurisdiction." Valencia v. United States, 923 F.2d 917, 921
(1st Cir. 1991). We need not resolve that issue here,
however, because even if we assume that Rojas did not waive
the jurisdictional challenge by pleading guilty, he has
failed to show that the district court erred in denying his
2255 motion.
-5-
In his 2255 motion, Rojas makes the same claims
and relies upon the same new evidence as did Robinson in his
motion. The new evidence -- the May 10, 1993 letter --
submitted with Rojas' 2255 motion did not disprove, or even
contradict, denial of registry, however. Accordingly, the
district court did not err in summarily dismissing the
motion. Rojas, like Robinson, also seeks relief on the basis
of the February 8, 1996 letter. For the same reasons that
the late-submitted evidence did not entitle Robinson to
relief under 2255, it is of no avail to Rojas.
The district court's summary dismissals of the
motions are affirmed.
-6-