
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2168                                  TERRENCE BROOKER,                                Petitioner, Appellant,                                          v.                                    UNITED STATES,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Terrence Terain Brooker on brief pro se.            _______________________            Sheldon  Whitehouse, United  States Attorney,  Margaret E.  Curran            ___________________                            ___________________        and Edwin J.  Gale, Assistant  United States Attorneys,  on brief  for            ______________        appellee.                                 ____________________                                    April 29, 1997                                 ____________________                      Per  Curiam.   Pro  se  appellant  Terrence Brooker                      ___________            appeals  from the denial of his motion to vacate his sentence            under 28 U.S.C.   2255.  We affirm.                      In   his   motion,   Brooker   alleged   that   his            constitutional  rights to  due process  and to  the effective            assistance  of counsel  had been  violated when  his attorney            failed  to challenge, at sentencing  or on direct appeal, his            enhanced  sentencing  for  conspiring  to distribute  and  to            possess crack cocaine.   According to Brooker, the government            failed to prove that  the drug crime to which  he pled guilty            involved  "crack cocaine,"  rather  than some  other form  of            "cocaine base"  for which he  would have been  more leniently            sentenced.    However,  the  plea  hearing  transcript  shows            unambiguously that, under oath, Brooker knowingly admitted to            having   agreed   to  distribute   crack  cocaine   in  taped            conversations with a  government informant.  "There can be no            question that admissions to the court by a defendant during a            guilty plea colloquy  can be relied upon by  the court at the            sentencing  stage."  United States v. James, 78 F.3d 851, 856                                 _____________    _____            (3d Cir.), cert. denied, 117 S. Ct. 128  (1996).  Because the                       ____________            record  conclusively  refutes  the allegations  in  Brooker's            unverified     2255  motion,  the district  court  was  fully            justified  in   denying   the  motion   without  holding   an            evidentiary  hearing.  See United States  v. LaBonte, 70 F.3d                                   ___ _____________     _______            1396,  1413 (1st Cir. 1995),  petition for cert. granted, 116                                          __________________________                                         -2-            S. Ct. 2545 (1996) (a   2255 motion may  be dismissed without            an evidentiary hearing if key factual averments in the motion            are  contradicted "by  established  facts of  record"; habeas            claims  must "rest  on  a foundation  of factual  allegations            presented  under  oath,  either  in a  verified  petition  or            supporting affidavits").                   Moreover, the district court had no obligation to permit            Brooker to  file a "traverse" to  the government's opposition            to  his motion, as  Brooker claims.   This is  so because the            government  did not ask for dismissal of the   2255 motion as            a  delayed or  successive petition.    See Barrett  v. United                                                   ___ _______     ______            States,  965 F.2d 1184, 1187 n.3  (1st Cir. 1992) (the   2255            ______            rules do not contemplate the filing of a traverse, unless the            government's response asks for  dismissal of the motion under            Rule 9 relative to delayed or successive motions).                      On   appeal,  Brooker  has   made  new   claims  of            ineffective  assistance of  counsel, proffering  a supporting            affidavit which  was never  presented to the  district court.            We decline to consider  his new claims.  See United States v.                                                     ___ _____________            Ocasio-Rivera,  991 F.2d  1,  3 (1st  Cir.  1993) ("It  is  a            _____________            bedrock  principle  in  this  circuit  that  issues  must  be            squarely  raised  in the  district court  if  they are  to be            preserved for appeal.  That principle applies unreservedly in            the  criminal   sentencing  context.").     Brooker  has  not                                         -3-            described any exceptional circumstances that  would warrant a            different outcome.                      Affirmed.                      _________                                         -4-
