May 9, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1880
CARLOS FERRER-CRUZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Cyr and Lynch,
Circuit Judges.
Carlos Ferrer-Cruz on brief pro se.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco and
Nelson Perez-Sosa, Assistant United States Attorneys, on brief for
appellee.
Per Curiam. Following his conviction for possession
with intent to distribute cocaine, appellant Carlos Ferrer-
Cruz filed a motion under 28 U.S.C. 2255 seeking to have
his sentence vacated, set aside, or corrected. The motion
was assigned to the district judge who presided over the
trial and sentencing hearing. See Rule 4(a) of the Rules
Governing 2255 Proceedings. Since the sentencing hearing
had never been transcribed and the court reporter's notes
were lost, appellant was ordered to provide a statement of
his recollection of the proceedings. The motion was then
referred to a magistrate, who recommended that it be denied
and dismissed. Thereafter, for reasons which are not
entirely clear based on the record, the instant case was
administratively transferred to another district judge
(hereinafter: motion judge). Appellant did not object to
the transfer. After a de novo review, the motion judge
adopted the magistrate's recommendation. This appeal
followed.
Appellant's sole argument is that it was error for a
judge other than the sentencing judge to rule on his 2255
motion. This argument is waived since it was never presented
to the district court. See, e.g., Carreiro v. Rhodes Gill &
Co., 68 F.3d 1443, 1449 (1st Cir. 1995); Clauson v. Smith,
823 F.2d 660, 666 (1st Cir. 1987). Similarly, appellant has
abandoned any arguments on the merits of the issues raised in
his 2255 motion since he has failed to argue the merits in
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his appellate brief. See, e.g., Willhauck v. Halpin, 953
F.2d 689, 700 (1st Cir. 1991).
We add simply that we are persuaded that the motion
judge -- who had the benefit of the trial transcript, the
PSR, and the judgment -- was fully in a position to decide
the issues raised in the motion. Contrary to appellant's
suggestion, the motion judge was in a position to make, and
did make, an independent assessment of whether appellant's
sentence would likely have been different if defense counsel
had acted differently. Assuming without deciding that
appellant's claims premised on inadequate opportunity to
review the PSR and failure of the court to make findings
regarding his financial condition are cognizable in 2255
proceedings, they are arguably procedurally barred. See
Knight v. United States, 37 F.3d 769, 774 (1st Cir. 1994)
(explaining cause and prejudice requirement). In any event,
appellant failed to show that he was prejudiced by the lack
of an adequate opportunity to personally review the PSR.
Moreover, the PSR thoroughly details appellant's financial
condition, and the court's consideration of this condition is
evinced by the fact that it chose a fine within appellant's
then ability to pay and at the lower end of the applicable
range. Cf. United States v. Wilfred Am. Educ. Corp., 953
F.2d 717, 719-20 (1st Cir. 1992) (reviewing court will not
presume that sentencing court ignored relevant evidence in
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the record). Under the circumstances, we do not think a
sentencing transcript was essential to evaluate appellant's
claims.
Affirmed.
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