
USCA1 Opinion

	




        December 8, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1849                                  MAURICE F. ALVES,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Maurice F. Alves on brief pro se.            ________________            Donald  K. Stern,  United  States Attorney,  and John  M. Griffin,            ________________                                 ________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.   We have reviewed  the parties' briefs  and                 __________            the record on appeal.   Appellant's retroactivity argument is            clearly  foreclosed  by  our  decision in  United  States  v.                                                       ______________            Havener, 905  F.2d 3 (1st Cir. 1990)  (holding that Amendment            _______            266 was not  retroactive).  His complaint  regarding the Fed.            R. Crim. P. 32(a)(1) colloquy does not appear cognizable in a               2255 motion.   See  Hill  v. United  States, 368  U.S. 424                              ___  ____     ______________            (1962)  (holding   that  a  failure  to   follow  the  formal            requirements  of  Rule  32(a)  is  not  of  itself  an  error            cognizable pursuant to    2255).  In any event,  that precise            argument  also has  been considered previously  and rejected.            United States v.  Manrique, 959 F.2d 1155,  1157-58 (1st Cir.            _____________     ________            1992) (rejecting  claim that  district court  must personally            ask  defendant whether (a) he had the opportunity to read the            PSR, (b) he  had discussed  report with counsel,  and (c)  he            wished  to challenge the report).  The district court did not            abuse its discretion in  giving the government an enlargement            of time in which to respond to the   2255 motion.                 The   remainder  of   appellant's  claims   concern  the            application of  the sentencing guidelines.   Neither of these            claims  appears  to  implicate "a  fundamental  defect  which            inherently results in a  complete miscarriage of justice," so            as to permit review  on collateral attack.  Knight  v. United                                                        ______     ______            States, No. 94-1374, slip op. at p. 6 (Oct. 20, 1994)(quoting            ______            Hill v. United States, 368 U.S. at 428).  In any event, these            ____    _____________                                         -2-            claims could have been raised on  direct appeal and appellant            has not  shown cause and prejudice for failing to do so.  Id.                                                                      ___            at p. 10.                 The request for oral argument is denied.                 Affirmed.                 _________                                         -3-
