Cortes-Alejandro v. Hawk ( 1998 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 96-2349
LUIS A. CORTES-ALEJANDRO,
Petitioner, Appellant,
v.
KATHERINE HAWK, DIRECTOR OF FEDERAL BUREAU OF PRISONS,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Luis A. Cortes-Alejandro pro se.
Guillermo Gil, United States Attorney, Jose A. Quiles
Espinosa, Senior Litigation Counsel, and Jacabed Rodriguez-Coss,
Assistant United States Attorney.
December 30, 1998
Per Curiam. Petitioner appeals from a denial of a
petition for collateral relief from his conviction under 28
U.S.C. 2255, and the denial of a motion for a new trial. The
petition was filed in the district court prior to the effective
date of the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), so our review is under the habeas statutes
unaltered by the AEDPA. See Martin v. Bissonette, 118 F.3d
871, 873 (1st Cir. 1997).
Below, petitioner argued that the government had
violated its discovery obligations by withholding impeachment
information about two government witnesses and that "new"
impeachment evidence, acquired after petitioner's conviction,
warranted a new trial. The district court rejected the
arguments, finding that, (1) the government had disclosed to
the defense all of the impeachment evidence in its possession
at the time of trial and, even if it had not, the allegedly
undisclosed evidence was not "material" to the outcome of the
trial; and (2) the "new" impeachment evidence acquired after
the trial was of marginal value and would not likely result in
an acquittal.
Having carefully examined the judgement in light of
the record, the government's brief, and petitioner's filings
below, we affirm. There is no clear error in the court's
factual findings and, upon de novo review, we agree that the
allegedly undisclosed impeachment evidence was not "material"
to the outcome of the trial. See United States v. Cunan, 152
F.3d 29, 34 (1st Cir. 1998) (defining "material" evidence in
this context). The "new" impeachment evidence also was of
dubious materiality, and there was no "manifest abuse of
discretion" in the district court's denial of the motion for a
new trial. United States v. Montilla-Rivera, 115 F.3d 1060,
1064 (1st Cir. 1997).
During the pendency of this appeal, petitioner filed
a confused "motion to remand," which attacks, for the first
time on appeal, the legality of his sentence. Construed as (1)
an attempt to insinuate wholly new issues and arguments on
appeal, the motion is denied. Alternatively, (2) construed as the functional equivalent of a motion for permission to file a
second or successive 2255 petition, permission is denied.
See Pratt v. United States, 129 F.3d 54 (1st Cir. 1997)
(holding that when a prisoner's first and second habeas
petitions straddle the AEDPA's effective date, permission to
proceed with the second petition must be sought in the court of
appeals), cert. denied, 118 S. Ct. 1807 (1998). There are no
grounds for certification shown in this motion. See 28 U.S.C.
2255 (requiring for certification a "new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable,"
or "newly discovered evidence" which might establish that
petitioner is not guilty of the offense of conviction).
Lastly, (3) construed as a motion arguing for retroactive
revision of the sentence due to an allegedly applicable change
in the sentencing guidelines while we entertain very grave
doubts about the merits of the argument petitioner is advised
that permission from this court is not required for the filing
of such a motion. See 18 U.S.C. 3582(c).
The judgement is affirmed. The "motion to remand,"
alternatively construed as an application for permission to
file a successive petition, is denied.