Rivera-Feliciano v. United States ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]







                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 96-1233



                               ANGEL RIVERA-FELICIANO,



                                Plaintiff, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                     Coffin and Campbell, Senior Circuit Judges.
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            Jose F. Quetglas Jordan for appellant.
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            Philip  Urofsky,  Attorney,  with  whom  John  C.  Keeney,  Acting
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        Assistant Attorney General, Guillermo Gil, United States Attorney, and
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        Theresa M.B.  Van Vliet,  Chief,  Narcotic &  Dangerous Drug  Section,
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        Criminal Division, U.S. Department  of Justice, were on brief  for the

        United States.





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                                   January 9, 1997

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                      Per Curiam.  Upon  consideration of the record, the
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            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
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            v. Washington, 466 U.S. 668, 687-696 (1984).
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                      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










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            1.  The district court's opinion is published as Feliciano v.
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            United States,  914 F. Supp.  776 (D.P.R.  1996).  We  note a
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            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
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            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
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            (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
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            Feliciano, 914 F. Supp. at 781 (quoting from United States v.
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            Lovasco, 431 U.S. 783, 794-95 (1976)), it will  ordinarily be
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            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,
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            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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