Alves v. United States ( 1994 )

USCA1 Opinion

        December 8, 1994        [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



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        No. 94-1849

                                  MAURICE F. ALVES,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                          Boudin and Stahl, Circuit Judges.
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            Maurice F. Alves on brief pro se.
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            Donald  K. Stern,  United  States Attorney,  and John  M. Griffin,
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        Assistant United States Attorney, on brief for appellee.


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                 Per Curiam.   We have reviewed  the parties' briefs  and
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            the record on appeal.   Appellant's retroactivity argument is

            clearly  foreclosed  by  our  decision in  United  States  v.
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            Havener, 905  F.2d 3 (1st Cir. 1990)  (holding that Amendment
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            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
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            (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.
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            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
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            States, No. 94-1374, slip op. at p. 6 (Oct. 20, 1994)(quoting
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            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.
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            at p. 10.

                 The request for oral argument is denied.

                 Affirmed.
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