[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1233
ANGEL RIVERA-FELICIANO,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin and Campbell, Senior Circuit Judges.
Jose F. Quetglas Jordan for appellant.
Philip Urofsky, Attorney, with whom John C. Keeney, Acting
Assistant Attorney General, Guillermo Gil, United States Attorney, and
Theresa M.B. Van Vliet, Chief, Narcotic & Dangerous Drug Section,
Criminal Division, U.S. Department of Justice, were on brief for the
United States.
January 9, 1997
Per Curiam. Upon consideration of the record, the
briefs and the arguments, we affirm the judgment of the
district court for substantially the same reasons expressed
by that court in its opinion and order of January 20, 1996.1
We add the following: With regard to Rivera-
Feliciano's ineffective assistance of counsel claim, his
counsel's failure to move to dismiss the 1986 charges based
on the earlier plea agreement did not demonstrate
constitutionally ineffective assistance as, for reasons
explained in the opinion below, there was little likelihood
that such a motion would have been allowed. See Strickland
v. Washington, 466 U.S. 668, 687-696 (1984).
Rivera-Feliciano contends that the district court
erred in assigning his 28 U.S.C. 2255 petition to Judge
Perez-Gimenez, the judge who had presided over the 1986 trial
and had sentenced him in Cr. Case No. 86-419(PG). Rather,
appellant argues, the case should have gone to Judge Pieras,
the judge who in 1985 had accepted his guilty plea in Cr.
Case No. 85-114(JP), and sentenced him on the plea. This
contention runs counter to Rule 4(a) of the Rules Governing
1. The district court's opinion is published as Feliciano v.
United States, 914 F. Supp. 776 (D.P.R. 1996). We note a
typographical error in the opinion: on page 778, at the
beginning of the second paragraph under the heading
"Background," "1986" should read "1985." See United States
v. Rivera-Feliciano, 930 F.2d 951, 952 (1st Cir. 1991).
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Section 2255 Proceedings for the United States District
Courts, which provides, in relevant part:
The original motion shall be presented
promptly to the judge of the district
court who presided at the movant's trial
and sentenced him, or, if the judge who
imposed sentence was not the trial judge,
then it shall go to that judge who was in
charge of that part of the proceedings
being attacked by the movant.
Rules Governing Section 2255 Proceedings for the United
States District Courts, Rule 4(a), 28 U.S.C. foll. 2255
(1994).
The section 2255 petition here challenged the
convictions and sentences following trial in 1986. As Judge
Perez-Gimenez had also been the trial judge in that
proceeding, he was the appropriate judge to hear the
petition. That petitioner's challenge to the 1986
convictions and sentences was based on the 1985 plea
proceeding is immaterial.
Finally, we find no merit in the argument that the
district court was required to accept as true, or hold an
evidentiary hearing on, Rivera-Feliciano's conclusory
allegation that the government had sufficient evidence to
indict him in 1985 for charges later included in the 1986
indictment. See Shraiar v. United States, 736 F.2d 817, 818
(1st Cir. 1984) ("A 2255 motion may be denied without a
hearing as to those allegations which, if accepted as true,
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entitle the movant to no relief, or which need not be
accepted as true because they state conclusions instead of
facts . . . .") (citations omitted).
As suggested in the district court's opinion, see
Feliciano, 914 F. Supp. at 781 (quoting from United States v.
Lovasco, 431 U.S. 783, 794-95 (1976)), it will ordinarily be
up to the government to decide when it has sufficient
evidence to prosecute. Here, the government offered a
plausible reason for its delay, which the district judge
could evaluate based on his having presided over the trial,
to wit, that the testimony of Jos Panzardi-Alvarez was
deemed essential to the 1986 conspiracy prosecution. The
district court's determination that a separate hearing on the
state of the government's evidence in 1985 was not needed in
order to permit it to rule intelligently on the petition was
well within its discretion. See Parsons v. United States,
404 F.2d 888 (5th Cir. 1968) (On motion to vacate sentence,
federal district court has discretion to ascertain whether
claim is substantial before granting a full evidentiary
hearing) (per curiam).
Affirmed.
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