Brooker v. United States ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2168
TERRENCE BROOKER,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Terrence Terain Brooker on brief pro se.
Sheldon Whitehouse, United States Attorney, Margaret E. Curran
and Edwin J. Gale, Assistant United States Attorneys, on brief for
appellee.
April 29, 1997
Per Curiam. Pro se appellant Terrence Brooker
appeals from the denial of his motion to vacate his sentence
under 28 U.S.C. 2255. We affirm.
In his motion, Brooker alleged that his
constitutional rights to due process and to the effective
assistance of counsel had been violated when his attorney
failed to challenge, at sentencing or on direct appeal, his
enhanced sentencing for conspiring to distribute and to
possess crack cocaine. According to Brooker, the government
failed to prove that the drug crime to which he pled guilty
involved "crack cocaine," rather than some other form of
"cocaine base" for which he would have been more leniently
sentenced. However, the plea hearing transcript shows
unambiguously that, under oath, Brooker knowingly admitted to
having agreed to distribute crack cocaine in taped
conversations with a government informant. "There can be no
question that admissions to the court by a defendant during a
guilty plea colloquy can be relied upon by the court at the
sentencing stage." United States v. James, 78 F.3d 851, 856
(3d Cir.), cert. denied, 117 S. Ct. 128 (1996). Because the
record conclusively refutes the allegations in Brooker's
unverified 2255 motion, the district court was fully
justified in denying the motion without holding an
evidentiary hearing. See United States v. LaBonte, 70 F.3d
1396, 1413 (1st Cir. 1995), petition for cert. granted, 116
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S. Ct. 2545 (1996) (a 2255 motion may be dismissed without
an evidentiary hearing if key factual averments in the motion
are contradicted "by established facts of record"; habeas
claims must "rest on a foundation of factual allegations
presented under oath, either in a verified petition or
supporting affidavits").
Moreover, the district court had no obligation to permit
Brooker to file a "traverse" to the government's opposition
to his motion, as Brooker claims. This is so because the
government did not ask for dismissal of the 2255 motion as
a delayed or successive petition. See Barrett v. United
States, 965 F.2d 1184, 1187 n.3 (1st Cir. 1992) (the 2255
rules do not contemplate the filing of a traverse, unless the
government's response asks for dismissal of the motion under
Rule 9 relative to delayed or successive motions).
On appeal, Brooker has made new claims of
ineffective assistance of counsel, proffering a supporting
affidavit which was never presented to the district court.
We decline to consider his new claims. See United States v.
Ocasio-Rivera, 991 F.2d 1, 3 (1st Cir. 1993) ("It is a
bedrock principle in this circuit that issues must be
squarely raised in the district court if they are to be
preserved for appeal. That principle applies unreservedly in
the criminal sentencing context."). Brooker has not
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described any exceptional circumstances that would warrant a
different outcome.
Affirmed.
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