Garcia Aromi v. United States ( 1996 )

USCA1 Opinion

        January 2, 1996         [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-1459



                               FRANCISCO GARCIA AROMI,



                                Petitioner, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                Respondent, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO





                    [Hon. Hector M. Laffitte, U.S. District Judge]
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                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
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            Francisco Garcia Aromi on brief pro se.
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            Guillermo  Gil,   United  States  Attorney,   Miguel  A.  Pereira,
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        Assistant United States Attorney, and  Jose A. Quiles Espinosa, Senior
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        Litigation Counsel, on brief for appellee.





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                 Per Curiam.   Pro  se petitioner Francisco  Garcia Aromi
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            (Garcia) was convicted  after pleading guilty to a  two count



            indictment that  charged him  with robbing the  San Sebastian



            branch  of the  Banco Popular  de Puerto  Rico and  using and



            carrying  firearms in  connection with  said robbery,  all in



            violation  of  18  U.S.C.      2,  2113(a),  (d),   (e),  and



            924(c)(1).  He now appeals a district court order that denied



            his motion to vacate his sentence under 28 U.S.C.   2255.



            Garcia's motion and supplemental filings alleged four claims:



            (1)  that  he  is  entitled  to  a  downward  adjustment  for



            acceptance  of  responsibility  under  a  1992  amendment  to



            U.S.S.G.  3E1.1(a),  (2) that  he is  entitled to  a downward



            adjustment  for  being  a minor  participant  under  U.S.S.G.



             3B1.2(b),  (3)   that  his   sentence  violates   the  Fifth



            Amendment's  Equal  Protection Clause,  and (4)  that defense



            counsel rendered ineffective assistance by failing  to appeal



            Garcia's  sentence, failing  to  seek the  minor  participant



            adjustment,   and  failing  to  explain  various  matters  to



            Garcia.1



                 We have thoroughly reviewed  the record and the parties'



            briefs  on  appeal.   We  conclude  that the  district  court



            properly  denied  Garcia's   3E1.1(a)  and  Equal  Protection






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            1.  Garcia alleged that defense counsel failed to explain the

            nature of the  offense, the  fact that Garcia  could be  held

            responsible for  his codefendants'  conduct, the uses  of the

            presentence report, and the consequences of his guilty plea.



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            claims  for  the  reasons  stated  in  the  district  court's



            opinion.   And while  we agree that  Garcia's  3B1.2(b) claim



            was meritless, we  note that  it also was  not cognizable  in



            this    2255 proceeding. See  Knight v. Miller,  37 F.3d 769,
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            771-74 (1st Cir. 1994).   We also agree that  Garcia's claims



            that  defense  counsel  rendered  ineffective  assistance  by



            failing  to seek  a  3B1.2(b)  adjustment and  by  failing to



            explain  the  matters  noted  in  note  1, supra,  also  were
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            properly  denied  for  the  reasons stated  in  the  district



            court's opinion.2  Finally, Garcia has  waived his claim that



            counsel rendered ineffective assistance  by failing to file a



            notice  of  appeal because  he has  not  addressed it  in his



            opening brief.  Cf.  Barrett v. United States 965  F.2d 1184,
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            1187 n. 3 (1st Cir. 1992).   Accordingly, the judgment of the



            district court is affirmed.
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            2.  Moreover, as Garcia's claim that defense counsel rendered

            ineffective  assistance by  failing  to explain  the  various

            matters  identified  above  was  based only  on  his  unsworn

            allegations, the claim was inadequate on its face.  "A habeas

            application must rest on  a foundation of factual allegations

            presented  under  oath,  either  in a  verified  petition  or

            supporting  affidavits.....Facts alluded  to  in  an  unsworn

            memorandum will not suffice."  United States v.  Labonte, No.
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            95-1226,  slip op.  at 36  (1st  Cir. Dec.  6, 1995)(citation

            omitted).



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