[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1668
VICTOR ALVAREZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr and Stahl, Circuit Judges.
Victor Alvarez on brief pro se.
Guillermo Gil, United States Attorney, Sonia I. Torres, Assistant
United States Attorney, and Jos A. Quiles-Espinosa, Senior Litigation
Counsel, on brief for appellee.
August 2, 1996
Per Curiam. This is an appeal from a district
court order denying a motion by petitioner Alvarez to set
aside his conviction and sentence. See 28 U.S.C. 2255. We
affirm the judgment for the following reasons.
(1) Petitioner alleges a deprivation of his rights
to confrontation, compulsory process, due process and equal
protection of the laws, in a trial court ruling that limited
the scope of co-defendant Flores's testimony. The same
arguments were raised, considered, and rejected on
petitioner's direct appeal. United States v. Alvarez, 987
F.2d 77, 81-83 (1st Cir.), cert. denied, 510 U.S. 849 (1993).
They may not be resurrected on collateral review. See Murchu
v. United States, 926 F.2d 50, 55 (1st Cir.), cert. denied,
502 U.S. 828 (1991).
(2) Petitioner alleges ineffective assistance of
counsel at trial, and related deprivations of his rights
under the Fourteenth Amendment, in connection with the
erroneous admission into evidence of co-defendant Matos's
pre-trial statement. However, to sustain such a claim a
petitioner must show prejudice, meaning that but for his
counsel's alleged error the result of the proceeding would
have been different. See Argencourt v. United States, 78
F.3d 14, 15 (1st Cir. 1996). On direct appeal, petitioner
made the same argument as to prejudice that he makes here,
i.e., that "spillover prejudice" from the erroneous admission
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of Matos's statement entitled him to a reversal or new trial.
A panel of this court concluded that although Matos was
entitled to a reversal due to the error, as to petitioner
there was sufficient evidence to sustain the jury's verdict.
Alvarez, 987 F.2d at 83-84. Thus this claim, too, is
foreclosed by the decision on direct review, and we need not
reach petitioner's allegation that trial counsel's
performance in this regard was deficient.
(3) Petitioner claims that the district court erred
at sentencing in attributing to him the total weight of the
cocaine found in all three codefendants' suitcases. This
alleged nonconstitutional, nonjurisdictional error was not
raised on direct appeal. It may not be considered for the
first time under 2255 absent a showing of "exceptional
circumstances" amounting to a complete miscarriage of
justice. Knight v. United States, 37 F.3d 769, 772-73 (1st
Cir. 1994). No exceptional circumstances were shown here.1
1
Although no other issues are raised in petitioner's
briefs, appellee spontaneously argues that defense counsel's
failure to call petitioner as a witness at the trial was
probably a deliberate strategic decision. Petitioner now
1 While this case was pending on appeal, the President
1
signed into law the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996).
Although neither party has raised the issue, we note that we
need not decide in this case whether any of the amendments
in the Act apply, since it would not alter our disposition.
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contends that he needs the assistance of counsel to brief
this new question. As the issue itself is not properly
before us (it was not squarely presented to the court below),
and in any event we see no reason to appoint counsel,
petitioner's supplementary memorandum seeking reconsideration
of our order denying an appointment of counsel is denied.
The judgment below is affirmed.
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