USCA1 Opinion
December 8, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1849
MAURICE F. ALVES,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
____________________
Maurice F. Alves on brief pro se. ________________
Donald K. Stern, United States Attorney, and John M. Griffin, ________________ ________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. We have reviewed the parties' briefs and __________
the record on appeal. Appellant's retroactivity argument is
clearly foreclosed by our decision in United States v. ______________
Havener, 905 F.2d 3 (1st Cir. 1990) (holding that Amendment _______
266 was not retroactive). His complaint regarding the Fed.
R. Crim. P. 32(a)(1) colloquy does not appear cognizable in a
2255 motion. See Hill v. United States, 368 U.S. 424 ___ ____ ______________
(1962) (holding that a failure to follow the formal
requirements of Rule 32(a) is not of itself an error
cognizable pursuant to 2255). In any event, that precise
argument also has been considered previously and rejected.
United States v. Manrique, 959 F.2d 1155, 1157-58 (1st Cir. _____________ ________
1992) (rejecting claim that district court must personally
ask defendant whether (a) he had the opportunity to read the
PSR, (b) he had discussed report with counsel, and (c) he
wished to challenge the report). The district court did not
abuse its discretion in giving the government an enlargement
of time in which to respond to the 2255 motion.
The remainder of appellant's claims concern the
application of the sentencing guidelines. Neither of these
claims appears to implicate "a fundamental defect which
inherently results in a complete miscarriage of justice," so
as to permit review on collateral attack. Knight v. United ______ ______
States, No. 94-1374, slip op. at p. 6 (Oct. 20, 1994)(quoting ______
Hill v. United States, 368 U.S. at 428). In any event, these ____ _____________
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claims could have been raised on direct appeal and appellant
has not shown cause and prejudice for failing to do so. Id. ___
at p. 10.
The request for oral argument is denied.
Affirmed. _________
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