
USCA1 Opinion

	




          May 16, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1411                                    UNITED STATES,                                      Appellee,                                          v.                              MARIA LUCIA RAZO-GRANADO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Maria Lucia Razo-Granado on brief pro se.            ________________________            Guillermo Gil, United States Attorney, and Joseph J.  Frattallone,            _____________                              ______________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam. Appellant Maria  Razo-Granado was convicted                 ___________            of drug offenses arising  out of a failed attempt  to smuggle            cocaine  into  the United  States.   She  did not  appeal her            conviction or  sentence and  is presently serving  a 78-month            prison term.   Appellant appeals from a  district court order            that summarily dismissed her 28  U.S.C.   2255 motion without            prejudice.  We affirm  the dismissal, but we modify it  to be            with prejudice.            ____ _________                 Appellant's   2255 motion alleged three claims: (1) that            customs  officers were  "ineffective" and  "ignorant" because            initial field  tests suggested that  the controlled substance            appellant   was  carrying   was  heroin,  when   later  tests            determined that  it was cocaine; (2)  that appellant's Fourth            Amendment  rights   were  violated  when  she   was  stopped,            detained, questioned, and subjected to the warrantless search            of her  luggage and its  contents when she  presented herself            for  entry at the United States border, (3) that the district            judge erred by sentencing appellant based on the total amount            of  cocaine that  was  recovered,  as  opposed  to  a  lesser            quantity of pure cocaine.     As appellant's  first and third            claims do not assert a constitutional or jurisdictional error            or  an  error that  resulted  in  a complete  miscarriage  of            justice,  they are not cognizable under   2255. See Knight v.                                                            ___ ______                                         -3-            United  States,   37  F.3d  769,  772-74   (1st  Cir.  1994).            ______________            Moreover, both claims are patently meritless.1                                                         1                 Appellant's Fourth Amendment claim similarly may not  be            reviewed on  the merits due to  appellant's double procedural            default.  See Knight,  37 F.3d at 774 ("Normally,  failure to                      ___ ______            raise  a  constitutional  issue  on direct  appeal  will  bar            raising the  issue on collateral attack  unless the defendant            can  show  cause for  the  failure  and actual  prejudice.").            Appellant has  not alleged  any "cause"  for  her failure  to            raise this issue before the trial judge and on direct appeal.            Thus,  her Fourth  Amendment claim  may  not now  be reviewed            under   2255.2                         2                 In  view  of  the  foregoing,  the  judgment  dismissing            appellant's   2255 motion is affirmed and modified to reflect                                         ________ ___ ________ __ _______            that the dismissal is with prejudice.            ____ ___ _________ __ ____ _________                                            ____________________               1  The fact  that initial  field tests suggested  that the               1            controlled  substance involved  in this  case was  heroin had            absolutely  no  impact on  appellant's trial,  conviction, or            sentence.   The record further establishes  that the district            judge  properly relied on  the entire weight  of the cocaine-            mixture that  was recovered  from appellant's  possessions in            sentencing appellant.  See U.S.S.G.  2D1.1(c), n. * (1991).                                     ___               2We note that the trial record strongly suggests that this               2            claim  is meritless  in  any  event.    And,  as  appellant's            procedural default bars review of her Fourth Amendment claim,            we need not  decide whether  Stone v. Powell,  428 U.S.  465,                                         _____    ______            481-82, 494 (1976)(barring habeas  review of Fourth Amendment            exclusionary  rule  claims  under  28 U.S.C.     2254),  also            applies to proceedings under 28 U.S.C.   2255.                                         -4-
