
USCA1 Opinion

	




          April 8, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1902                                     ABEL ROJAS,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________        No. 95-1906                              EDUARDO A. ROBINSON-MUNOZ,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                                                                     _____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                                                                     _____________________            Abel Rojas on brief pro se.            __________            Eduardo A. Robinson on brief pro se.            ___________________            Guillermo  Gil,  United   States  Attorney,   Edwin  O.   Vazquez,            ______________                                ___________________        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Eduardo Robinson-Munoz  and Abel Rojas                      __________            appeal  from the  district  court's summary  denial of  their            motions under 28 U.S.C.   2255.  We affirm.                                                ______                      I.  Robinson                          ________                      Robinson challenges  his  conviction after  a  jury            trial  of aiding and abetting the  possession, with intent to            distribute,  of marijuana  aboard a  vessel, 46  U.S.C.App.              1903(a),  (c)(1)(A) & 18 U.S.C.   2.  Specifically, he argues            that the  vessel ("the  Delfin") was  not  subject to  United            States  jurisdiction because  it  was not  "a vessel  without            nationality."   We rejected  that argument on  direct appeal.            In United  States v. Robinson-Munoz,  961 F.2d 300  (1st Cir.               ______________    ______________            1992),  we  held  that  the government's  presentation  of  a            certification of  the Secretary of State  indicating that the            Colombian government had denied the Delfin captain's claim of            Colombian registry "prove[d] jurisdiction beyond a reasonable            doubt."  Id. at 305.   Robinson  again challenged  the United                     ___            States' jurisdiction  over the  Delfin in  his  first    2255            motion.   The district court ruled that the issue had already            been  decided on direct  appeal and could  not be relitigated            under   2255.  Robinson-Munoz v. United States,  819 F. Supp.                           ______________    _____________            1136, 1142 (D. Puerto Rico 1993).  In   his  second      2255            motion, Robinson  relied upon  new evidence to  challenge the            United States'  jurisdiction over the  Delfin.  Specifically,            Robinson relied upon  a letter  dated May 10,  1993 from  the                                         -2-            Secretary  General  of the  Colombian Department  of National            Defense ("the May 10,  1993 letter").  The letter  stated, in            relevant part, as follows:                      having  reviewed the files of the General                      Command of the  Armed forces  and of  the                      National Navy, no document whatsoever was                      found, of authorization for  the boarding                      of the motor vessel  "DELFIN" on the 13th                      of October, 1990.            Robinson  appeals from the district court's summary dismissal            of  his  second    2255  motion.    On  appeal, he  seeks  to            introduce   yet  more   new   evidence  to   show  that   the            certification  of the  Secretary  of  State was  fraudulently            prepared (i.e., no denial  of registry was ever given  by the            Colombian  government) and, therefore,  that the  Due Process            Clause requires that his  conviction and sentence be vacated.            We affirm.                      The district  court did  not err in  dismissing the            motion  without holding  an  evidentiary hearing.  A "   2255            motion  may   be  denied  without  a  hearing   as  to  those            allegations which, if accepted as true, entitle the movant to            no relief, or which need not be accepted as true because they            state conclusions instead of facts, contradict the record, or            are 'inherently incredible.'"  Shraiar v. United  States, 736                                           _______    ______________            F.2d  817,  818  (1st Cir.  1984)  (citations  omitted).   In            addition,  "when,  as in  this case,  a petition  for federal            habeas relief is presented  to the judge who presided  at the            petitioner's trial,  the judge  is at  liberty to  employ the                                         -3-            knowledge   gleaned  during  previous  proceedings  and  make            findings  based  thereon  without  convening   an  additional            hearing." United States v. McGill, 11 F.3d 223, 225 (1st Cir.                      _____________    ______            1993).                        The relevant  evidence  before the  district  court            when it ruled  upon the   2255  motions consisted of the  May            10, 1993 letter.   At  most, that letter  indicates that  the            Colombian authorities never  gave the  Coast Guard  officials            permission  to board the Delfin.  Even accepting the truth of            that statement, it does  not entitle Robinson to relief.   In            this  case,  jurisdiction   was  based  upon   the  Colombian            government's denial  of registry. The denial  of registry was            proved by a certification by the Secretary of State.  The May            10, 1993 letter does not even contradict, much less disprove,            the statements made in the certification.                      The document that appellants sought to introduce as            "Supplemental Pleadings on Appeal" -- a letter dated February            8,  1996,  in  which  the Colombian  authorities  denied  the            existence  of  a  General  Rodriquez  at  the  time  that  he            allegedly denied  registry --  was never before  the district            court.   The  argument that  it constitutes  newly discovered            evidence  and  establishes a  violation  of  the Due  Process            Clause entitling Robinson  to   2255 relief  cannot be raised            for the  first time on  appeal.  "It  is a bedrock  rule that            when  a party has not  presented an argument  to the district                                         -4-            court, she may not unveil it in the court of appeals." United                                                                   ______            States   v.  Slade,  980   F.2d  27,  30   (1st  Cir.  1992).            ______       _____            (Appellants' reliance upon Fed. R. Civ. P. 15(d) is misplaced            because  they do  not seek  to supplement  a pleading  but to            introduce  new  evidence in  support of  a    2255  motion on            appeal.)  "[A]ppellate  courts retain  the power  to dispense            with the  raise-or-waive  rule  in order  to  avoid  a  gross            miscarriage of justice." Slade,  980 F.2d at 31.  This is not                                     _____            such  a case,  however.   Robinson has failed  to demonstrate            that  the  new evidence  "is 'so  compelling as  virtually to            insure appellant's success.'" Id. at 31.                                          ___                      II.  Rojas                           _____                      Rojas  pled  guilty  and has  never  contested  the            validity of his guilty plea.  We note initially that although            the issue is  not free from  doubt, "the better  view may  be            that  a  valid  guilty plea,  as  'an  admission  of all  the            elements  of a  formal  criminal charge,'  admits even  those            allegations  which  form the  factual  predicate for  federal            jurisdiction." Valencia  v. United States, 923  F.2d 917, 921                           ________     _____________            (1st  Cir. 1991).    We need  not  resolve that  issue  here,            however, because even if  we assume that Rojas did  not waive            the  jurisdictional  challenge  by  pleading guilty,  he  has            failed to show that the district court erred in denying his              2255 motion.                                         -5-                      In his   2255  motion, Rojas makes the  same claims            and relies  upon the same new evidence as did Robinson in his            motion.   The  new evidence  -- the  May 10,  1993 letter  --            submitted with Rojas'   2255 motion did not disprove, or even            contradict, denial  of registry,  however.  Accordingly,  the            district  court  did  not  err in  summarily  dismissing  the            motion.  Rojas, like Robinson, also seeks relief on the basis            of the February 8,  1996 letter.  For  the same reasons  that            the  late-submitted  evidence  did  not  entitle Robinson  to            relief under   2255, it is of no avail to Rojas.                      The  district  court's  summary  dismissals  of the            motions are  affirmed.                         ________                                         -6-
