Perez-Mendez v. United States

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







                                 ____________________





        No. 96-1561



                              JUAN MOISES PEREZ-MENDEZ,



                                Petitioner, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                Respondent, Appellee.

                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                       [Hon. Mary M. Lisi, U.S. District Judge]
___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
___________

                           Selya and Stahl, Circuit Judges.
______________



                                 ____________________



            Juan Moises Perez-Mendez on brief pro se.
________________________

            Sheldon Whitehouse,  United States Attorney,  Margaret E.  Curran,
__________________                            ___________________

        Assistant U.S. Attorney, and James H. Leavey, Assistant U.S. Attorney,
_______________

        on Appellee's Motion to  Dismiss For Failure to Obtain  Certificate of

        Appealability and To  Vacate the  Order Requiring Appellee  to File  A

        Brief.







                                 ____________________



                                  November 13, 1996

                                 ____________________



























                 Per Curiam.  Upon  careful review of petitioner's brief,
__________



            the  government's  motion  to  dismiss, and  the  record,  we



            conclude   that   the   district   court   correctly   denied



            petitioner's  motion.     For  the  reasons   stated  in  the



            magistrate judge's report and  recommendation, we agree  that



            petitioner  did   not  sustain   his  claim   of  ineffective



            assistance  of counsel during sentencing.   We add only these



            comments.



                 1.   The  government asserts that  this appeal should be



            dismissed  because   petitioner  has  failed   to  obtain   a



            certificate of  appealability as  required  under the  recent



            habeas  amendments,  the  Antiterrorism and  Effective  Death



            Penalty Act of 1996,  Pub. L. 104-132, 110 Stat.  1214 (April



            24, 1996).   There is some uncertainty  about the application



            of  those amendments  to  this proceeding,  but  we need  not



            resolve it here.  The result of this appeal would be the same



            under  any  analysis:    we  would  deny   a  certificate  of



            appealability were  one required, and we  also have concluded



            that  the  district court  order  should be  affirmed  on the



            merits.   Hence, we  do not address  the government's motion.



            See United  States v. Connell,  6 F.3d 27,  29 n.3 (1st  Cir.
___ ______________    _______



            1993) (forgoing resolution of a jurisdictional question where



            an uncomplicated  appeal is easily  resolved in favor  of the



            party challenging jurisdiction).











                                         -2-



























                 2.   For  the  first  time  in this  appeal,  petitioner



            contends that his attorney provided ineffective assistance by



            failing  to appeal  from the  sentencing court's  decision to



            accept certain facts stated in the presentence report.   That



            issue was not mentioned in petitioner's   2255 motion and was



            not  ruled  on by  the  district court,  and so  we  will not



            consider it.   See  United States   v. La  Guardia, 902  F.2d
___  _____________      ___________



            1010, 1013 (1st Cir.  1990) (issues not raised below  will be



            considered on appeal only in exceptional cases).



                 3.   Similarly,  we do  not  consider the  new affidavit



            attached to petitioner's brief,  because it was not presented



            to the district court.



                 For  the foregoing  reasons,  we need  not consider  the



            government's motion  to dismiss this  appeal and to  vacate a



            briefing order.



                 Affirmed.  See 1st Cir. Loc. R. 27.1.
________   ___











































                                         -3-