Rivera-Feliciano v. United States

USCA1 Opinion




[NOT FOR PUBLICATION]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
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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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