
USCA1 Opinion

	




          June 27, 1994     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No.  93-1621                                OSCAR ANIBAL TILLETT,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                                     ERRATA SHEET               The opinion of this Court issued on May  24, 1994 is amended          as follows:               Footnote 1 should read as follows.               1.  We note a problem in the magistrate's report.  The final          sentence of the  report states that  "[f]ailure to file  specific          objections in a timely  manner constitutes a waiver of  the right          to review by the  district court."  In a footnote, the magistrate          cites Park Motor Mart, Inc. v. Ford Motor Co., 616  F.2d 603 (1st                _____________________    ______________          Cir. 1980), and United States v. Valencia-Copete, 792 F.2d 4 (1st                          _____________    _______________          Cir.  1986).   The  final  sentence  in the  magistrate's  report          accurately  states  our  holding  in  Park Motor,  but  does  not                                                __________          encompass  our holding  in  Valencia-Copete.   In  that case,  we                                      _______________          directed all  magistrates to  include in their  reports a  notice          that failure to timely object to a  report would waive "the right          to  appeal the  district  court's  decision."    792  F.2d  at  6              ______ ___  ________  _______  ________          (emphasis  added).    We  note  that  a  different  Rhode  Island          magistrate's   report  included   in  the  record   is  similarly          deficient.    Accordingly, we  remind  all  magistrates in  Rhode          Island that their reports must include the statement that failure          to  file specific objections to reports in a timely manner waives          both the right  to review by the district court  and the right to          appeal the district court's decision.          May 24, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1621                                            OSCAR ANIBAL TILLETT,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Oscar Anibal Tillett on brief pro se.               ____________________               Edwin J. Gale,  United States Attorney,  Margaret E.  Curran               _____________                            ___________________          and Kenneth  P. Madden,  Assistant  United States  Attorneys,  on              __________________          brief for appellee.                                  __________________                                  __________________                                        - 2 -                                        - 2 -                      Per Curiam.      Oscar Anibal  Tillett appeals  the                      __________            dismissal of his motion under 28 U.S.C.   2255.  We affirm.                        In this case, the magistrate recommended dismissing            Tillett's section 2255 petition on the ground that he had not            excused a double procedural default  -- his failure to object            at sentencing to  a fine imposed on him by  the court and his            failure  to  appeal  his  sentence.1   Tillett  submitted  an            objection to  the  magistrate's report  alleging  ineffective            assistance of counsel  as cause  for his failure  to file  an            appeal.   Tillett said that he had asked his attorney to file            a direct appeal, that his attorney had promised to do so, and            that Tillett later discovered that  his attorney had not done            so.   The  district court  accepted the  magistrate's report,            without referring specifically to Tillett's objection.                                              ____________________            1.   We note a problem in the magistrate's report.  The final            sentence  of  the  report  states  that  "[f]ailure  to  file            specific objections  in a timely manner  constitutes a waiver            of  the  right  to  review by  the  district  court."   In  a            footnote, the magistrate cites Park Motor Mart,  Inc. v. Ford                                           ______________________    ____            Motor Co., 616 F.2d 603 (1st Cir. 1980), and United States v.            _________                                    _____________            Valencia-Copete,  792 F.2d  4  (1st Cir.  1986).   The  final            _______________            sentence in  the magistrate's  report  accurately states  our            holding  in Park Motor, but does not encompass our holding in                        __________            Valencia-Copete.   In that case, we  directed all magistrates            _______________            to include in their  reports a notice that failure  to timely            object  to  a report  would waive  "the  right to  appeal the                                                               ______ ___            district court's decision."  792  F.2d at 6 (emphasis added).            ________ _______ ________            We  note that  a different  Rhode Island  magistrate's report            included in the record  is similarly deficient.  Accordingly,            we remind  all magistrates in Rhode Island that their reports            must  include the  statement  that failure  to file  specific            objections  to  reports in  a timely  manner waives  both the            right to review by the district court and the right to appeal            the district court's decision.                                         -2-                      On appeal, Tillett has  not objected to the court's            failure to  address  his ineffective  assistance  of  counsel            claim,  and he  has  not presented  that claim  to  us as  an            appellate ground  for relief.  Indeed,  his initial appellate            brief says  nothing about ineffective assistance of counsel.2            It is  well  established  that  arguments not  raised  in  an            initial  appellate brief  are generally  deemed waived.   See                                                                      ___            Playboy Enterprises v.  Public Service  Commission of  Puerto            ___________________     _____________________________________            Rico, 906 F.2d 25, 40 (1st Cir.), cert.  denied, 498 U.S. 959            ____                              _____________            (1990).                        We  see no  reason why  we  should not  follow that            principle  here.  On this record, it is abundantly clear that            Tillett has  long known that he  had the right  to appeal his            sentence  and that it was  his failure to  appeal that barred            him from obtaining collateral relief.  It is also clear that,            before bringing  the present appeal, Tillett  must have known                                            ____________________            2.  Tillett's   reply  brief  makes   only  the  inconsistent            assertion  that his counsel never  even told him  that he had            the  right to appeal  his sentence and  that he  did not know            that  he  could  appeal  after   having  pled  guilty.    The            sentencing  transcript  shows  that  the  court  itself  told            Tillett at sentencing  that he  had the right  to appeal  his            sentence, and  that counsel  would be appointed  to represent            him  if  necessary.    Thus,  the  new  claim  on  appeal  is            conclusively refuted  by the record,  and does not  provide a            basis  for relief.  We  note that Tillett's  reply brief also            suggested that he was in  a state of shock at  his sentencing            because  an agreement to treat the charges against him in New            York  and Rhode  Island  in the  same  proceeding had  fallen            through.  This is a new claim which was not  presented to the            district court, and so  we decline to consider it  on appeal.            See United States v.  Ocasio-Rivera, 991 F.2d 1, 3  (1st Cir.            ___ _____________     _____________            1993).                                          -3-            that  ineffective assistance  by his  attorney was  a legally            significant  factor  in  determining  his  right   to  obtain            collateral relief.  As already  noted, the court told Tillett            at sentencing that he had the "right" to appeal his sentence.            Tillett knew by  the time he filed  a previous postconviction            motion for relief in 1991 that his  attorney had not done so.            The  dismissal of that motion  was grounded on  the fact that            Tillett  had not  filed an  appeal.   Tillett then  filed his                         ___            section 2255 action with the help of a prison paralegal.  The            form  he used stated that  failure to allege  all grounds for            relief could  mean that  those grounds would  be barred  from            being  presented  at a  later  date;  it specifically  listed            "denial of  effective assistance  of counsel" and  "denial of            right of appeal"  as commonly cited grounds  for section 2255            relief.  Furthermore, the magistrate's report made clear that            Tillett's unexplained failure to  appeal his sentence was one                      ___________            reason why collateral relief was not available.  Against this            backdrop, we  need not  look beyond  the  issues Tillett  has            presented to us on  appeal to decide his case.   Accordingly,            we conclude  that Tillett has voluntarily  waived any Bonneau                                                                  _______            claim he  may have had.   See Bonneau  v. United States,  961                                      ___ _______     _____________            F.2d 17,  23 (1st Cir. 1992)  (where there was no  doubt that            appellant  was deprived of his right of appeal because of the            dereliction of counsel, a section 2255 petitioner had a right                                         -4-            to take a direct appeal without first showing that the issues            on appeal would be meritorious).                      In the interests of judicial economy, therefore, we            proceed to evaluate  the merits of  his section 2255  claims,            and  affirm  the district  court  because  those claims  lack            merit.    The sentencing  court's  failure  to make  specific            findings of fact in support of its decision to impose a  fine            provides  no basis  for  granting collateral  relief in  this            circuit.   See United States  v. Savoie, 917  F.2d 1057, 1064                       ___ _____________     ______            (1st Cir. 1993).  The sentencing  transcript also makes clear            that  the court did consider Tillett's ability to pay a fine.            The  court acknowledged that a fine of $20,000 per count (for            a total  of $60,000 on the three counts to which Tillett pled            guilty)  seemed "somewhat  out  of line"  with the  financial            statement  in the presentence report.   But it suggested that            other facts given  in the report indicated that the financial            statement did not accurately reflect Tillett's actual assets.                      Contrary to what  Tillett suggests, the presentence            report did not conclude that he had no ability to pay a fine.            Moreover,  it contains  sufficient  evidence  to support  the            court's  imposition of a total  fine of $60,000.   The report            stated that Tillett had admitted that he had received $17,225            for heroin  sold to a single  Drug Enforcement Administration            agent in Rhode Island in the nine-month period  preceding his            arrest.   The  agent  gave an  additional  $2,500 to  one  of                                         -5-            Tillett's   co-defendants,  Luis   Cepeda,  who,   the  court            determined  at  sentencing,  was  a runner  for  Tillett  who            collected money  from heroin purchasers  on Tillett's behalf.            The presentence report also indicates that, two months before            his  arrest,  Tillett  had  arranged  to  sell  heroin  "that            weekend"  to the  DEA agent  for $35,000-$37,500,  suggesting            that  Tillett already had the heroin available, or that he at            least had  ready access to it.   The sale did  not go through            because  the government  backed  out;  it  did  not  want  to            jeopardize  a  separate  investigation  into  Tillett's  drug            trafficking activities  in New  York.3  The  court reasonably            could have inferred that  Tillett eventually sold that heroin            to other  parties and that he  had received up  to $37,500 in            illegal  drug sale  proceeds  in the  two months  immediately            preceding  his   arrest.    Thus,  the   information  in  the            presentence report  permitted the  court to conclude  that in            the  nine-month  period  preceding  Tillett's  arrest  he had            received up to $57,225  in proceeds from the sale  of heroin.            As  the  report says,  Tillett also  had  over $3,000  in his            checking and savings accounts,  and so we have no  doubt that            the  court did not abuse  its discretion in  imposing a total            fine  of $60,000 on Tillett, and in not deferring its payment            until after his release from prison.                                              ____________________            3.  The presentence report noted that Tillett had pled guilty            in  New York  district court  to one  count of  conspiracy to            possess with intent to distribute heroin.                                           -6-                      The district court knew that Tillett was engaged in            drug trafficking in both  Rhode Island and New York,  and the            presentence report does not suggest that Tillett's activities            were limited  to a few, isolated sales  of heroin.  The court            concluded at sentencing that Tillett was the organizer of the            drug conspiracy in  which he  was involved, and  that he  had            recruited  others to join that  conspiracy.  In addition, the            presentence report indicated  that Tillett had been  arrested            before on the charge that he had possessed heroin with intent            to deliver.  Accordingly, the court would have been justified            in  concluding  that  the  specific  sums  mentioned  in  the            presentence report,  which reflected  only several actual  or            potential  sales to a single  DEA agent in  Rhode Island, did            not  reflect the  total amount  of Tillett's  illegal income.            Furthermore,  before  his  arrest,  Tillett  had  had  steady            employment  with  the same  employer  for 17  years,  had net            monthly  income of  $2,240  and monthly  expenses of  $1,492,            leaving him with  a net monthly surplus of  $748.  From this,            the court could have inferred that Tillett's income from drug            sales was  not  used for  his  living expenses  (and  Tillett            suggests as much in his reply brief).                        The financial statement  in the presentence  report            showed that Tillett's combined checking and  savings accounts            contained  some  $3,136,  that  his  liabilities  were   some            $11,523, so that he had a negative net worth of approximately                                         -7-            $8,386.  In view of the facts recited above, however, and the            fact  that Tillett had retained counsel to represent him, the            court  could  reasonably  have  concluded that  the  sums  in            Tillett's  bank accounts reflected only his legitimate income            and not what his total financial resources were.  Under these            circumstances, and  given the fact  that the court  imposed a            fine  at  the  lower end  of  the  applicable  fine range  of            $12,500-$1,000,000,  we  think  that  there   was  sufficient            evidence  to support  the  court's imposition  of  a fine  of            $20,000 per count on Tillett.                      Affirmed.                      _________                                         -8-
