
USCA1 Opinion

	




        January 2, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1459                                FRANCISCO GARCIA AROMI,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Francisco Garcia Aromi on brief pro se.            ______________________            Guillermo  Gil,   United  States  Attorney,   Miguel  A.  Pereira,            ______________                                ___________________        Assistant United States Attorney, and  Jose A. Quiles Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.   Pro  se petitioner Francisco  Garcia Aromi                 __________    ___  __            (Garcia) was convicted  after pleading guilty to a  two count            indictment that  charged him  with robbing the  San Sebastian            branch  of the  Banco Popular  de Puerto  Rico and  using and            carrying  firearms in  connection with  said robbery,  all in            violation  of  18  U.S.C.      2,  2113(a),  (d),   (e),  and            924(c)(1).  He now appeals a district court order that denied            his motion to vacate his sentence under 28 U.S.C.   2255.             Garcia's motion and supplemental filings alleged four claims:            (1)  that  he  is  entitled  to  a  downward  adjustment  for            acceptance  of  responsibility  under  a  1992  amendment  to            U.S.S.G.  3E1.1(a),  (2) that  he is  entitled to  a downward            adjustment  for  being  a minor  participant  under  U.S.S.G.             3B1.2(b),  (3)   that  his   sentence  violates   the  Fifth            Amendment's  Equal  Protection Clause,  and (4)  that defense            counsel rendered ineffective assistance by failing  to appeal            Garcia's  sentence, failing  to  seek the  minor  participant            adjustment,   and  failing  to  explain  various  matters  to            Garcia.1                 We have thoroughly reviewed  the record and the parties'            briefs  on  appeal.   We  conclude  that the  district  court            properly  denied  Garcia's   3E1.1(a)  and  Equal  Protection                                            ____________________            1.  Garcia alleged that defense counsel failed to explain the            nature of the  offense, the  fact that Garcia  could be  held            responsible for  his codefendants'  conduct, the uses  of the            presentence report, and the consequences of his guilty plea.                                         -2-            claims  for  the  reasons  stated  in  the  district  court's            opinion.   And while  we agree that  Garcia's  3B1.2(b) claim            was meritless, we  note that  it also was  not cognizable  in            this    2255 proceeding. See  Knight v. Miller,  37 F.3d 769,                                     ___  ______    ______            771-74 (1st Cir. 1994).   We also agree that  Garcia's claims            that  defense  counsel  rendered  ineffective  assistance  by            failing  to seek  a  3B1.2(b)  adjustment and  by  failing to            explain  the  matters  noted  in  note  1, supra,  also  were                                                       _____            properly  denied  for  the  reasons stated  in  the  district            court's opinion.2  Finally, Garcia has  waived his claim that            counsel rendered ineffective assistance  by failing to file a            notice  of  appeal because  he has  not  addressed it  in his            opening brief.  Cf.  Barrett v. United States 965  F.2d 1184,                            ___  _______    _____________            1187 n. 3 (1st Cir. 1992).   Accordingly, the judgment of the            district court is affirmed.                              ________                                            ____________________            2.  Moreover, as Garcia's claim that defense counsel rendered            ineffective  assistance by  failing  to explain  the  various            matters  identified  above  was  based only  on  his  unsworn            allegations, the claim was inadequate on its face.  "A habeas            application must rest on  a foundation of factual allegations            presented  under  oath,  either  in a  verified  petition  or            supporting  affidavits.....Facts alluded  to  in  an  unsworn            memorandum will not suffice."  United States v.  Labonte, No.                                           _____________     _______            95-1226,  slip op.  at 36  (1st  Cir. Dec.  6, 1995)(citation            omitted).                                         -3-
