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USCA1 Opinion
May 9, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1880
CARLOS FERRER-CRUZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge] ___________________
____________________
Before
Selya, Cyr and Lynch,
Circuit Judges. ______________
____________________
Carlos Ferrer-Cruz on brief pro se. __________________
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco and _____________ _____________________
Nelson Perez-Sosa, Assistant United States Attorneys, on brief for __________________
appellee.
____________________
____________________
Per Curiam. Following his conviction for possession __________
with intent to distribute cocaine, appellant Carlos Ferrer-
Cruz filed a motion under 28 U.S.C. 2255 seeking to have
his sentence vacated, set aside, or corrected. The motion
was assigned to the district judge who presided over the
trial and sentencing hearing. See Rule 4(a) of the Rules ___
Governing 2255 Proceedings. Since the sentencing hearing
had never been transcribed and the court reporter's notes
were lost, appellant was ordered to provide a statement of
his recollection of the proceedings. The motion was then
referred to a magistrate, who recommended that it be denied
and dismissed. Thereafter, for reasons which are not
entirely clear based on the record, the instant case was
administratively transferred to another district judge
(hereinafter: motion judge). Appellant did not object to
the transfer. After a de novo review, the motion judge __ ____
adopted the magistrate's recommendation. This appeal
followed.
Appellant's sole argument is that it was error for a
judge other than the sentencing judge to rule on his 2255
motion. This argument is waived since it was never presented
to the district court. See, e.g., Carreiro v. Rhodes Gill & ___ ____ ________ _____________
Co., 68 F.3d 1443, 1449 (1st Cir. 1995); Clauson v. Smith, ___ _______ _____
823 F.2d 660, 666 (1st Cir. 1987). Similarly, appellant has
abandoned any arguments on the merits of the issues raised in
his 2255 motion since he has failed to argue the merits in
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his appellate brief. See, e.g., Willhauck v. Halpin, 953 ___ ____ _________ ______
F.2d 689, 700 (1st Cir. 1991).
We add simply that we are persuaded that the motion
judge -- who had the benefit of the trial transcript, the
PSR, and the judgment -- was fully in a position to decide
the issues raised in the motion. Contrary to appellant's
suggestion, the motion judge was in a position to make, and
did make, an independent assessment of whether appellant's
sentence would likely have been different if defense counsel
had acted differently. Assuming without deciding that
appellant's claims premised on inadequate opportunity to
review the PSR and failure of the court to make findings
regarding his financial condition are cognizable in 2255
proceedings, they are arguably procedurally barred. See ___
Knight v. United States, 37 F.3d 769, 774 (1st Cir. 1994) ______ ______________
(explaining cause and prejudice requirement). In any event,
appellant failed to show that he was prejudiced by the lack
of an adequate opportunity to personally review the PSR.
Moreover, the PSR thoroughly details appellant's financial
condition, and the court's consideration of this condition is
evinced by the fact that it chose a fine within appellant's
then ability to pay and at the lower end of the applicable
range. Cf. United States v. Wilfred Am. Educ. Corp., 953 ___ _____________ ________________________
F.2d 717, 719-20 (1st Cir. 1992) (reviewing court will not
presume that sentencing court ignored relevant evidence in
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the record). Under the circumstances, we do not think a
sentencing transcript was essential to evaluate appellant's
claims.
Affirmed. ________
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Document Info
Docket Number： 95-1880
Filed Date： 5/9/1996
Precedential Status： Precedential
Modified Date： 9/21/2015