
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
