[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1561
JUAN MOISES PEREZ-MENDEZ,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Juan Moises Perez-Mendez on brief pro se.
Sheldon Whitehouse, United States Attorney, Margaret E. Curran,
Assistant U.S. Attorney, and James H. Leavey, Assistant U.S. Attorney,
on Appellee's Motion to Dismiss For Failure to Obtain Certificate of
Appealability and To Vacate the Order Requiring Appellee to File A
Brief.
November 13, 1996
Per Curiam. Upon careful review of petitioner's brief,
the government's motion to dismiss, and the record, we
conclude that the district court correctly denied
petitioner's motion. For the reasons stated in the
magistrate judge's report and recommendation, we agree that
petitioner did not sustain his claim of ineffective
assistance of counsel during sentencing. We add only these
comments.
1. The government asserts that this appeal should be
dismissed because petitioner has failed to obtain a
certificate of appealability as required under the recent
habeas amendments, the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (April
24, 1996). There is some uncertainty about the application
of those amendments to this proceeding, but we need not
resolve it here. The result of this appeal would be the same
under any analysis: we would deny a certificate of
appealability were one required, and we also have concluded
that the district court order should be affirmed on the
merits. Hence, we do not address the government's motion.
See United States v. Connell, 6 F.3d 27, 29 n.3 (1st Cir.
1993) (forgoing resolution of a jurisdictional question where
an uncomplicated appeal is easily resolved in favor of the
party challenging jurisdiction).
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2. For the first time in this appeal, petitioner
contends that his attorney provided ineffective assistance by
failing to appeal from the sentencing court's decision to
accept certain facts stated in the presentence report. That
issue was not mentioned in petitioner's 2255 motion and was
not ruled on by the district court, and so we will not
consider it. See United States v. La Guardia, 902 F.2d
1010, 1013 (1st Cir. 1990) (issues not raised below will be
considered on appeal only in exceptional cases).
3. Similarly, we do not consider the new affidavit
attached to petitioner's brief, because it was not presented
to the district court.
For the foregoing reasons, we need not consider the
government's motion to dismiss this appeal and to vacate a
briefing order.
Affirmed. See 1st Cir. Loc. R. 27.1.
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