
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1668                                   VICTOR ALVAREZ,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Victor Alvarez on brief pro se.            ______________            Guillermo Gil, United States Attorney,  Sonia I. Torres, Assistant            _____________                           _______________        United States Attorney, and Jos  A. Quiles-Espinosa, Senior Litigation                                    _______________________        Counsel, on brief for appellee.                                 ____________________                                    August 2, 1996                                 ____________________                      Per  Curiam.   This is  an  appeal from  a district                      ___________            court order  denying a  motion by  petitioner Alvarez  to set            aside his conviction and sentence.  See 28 U.S.C.   2255.  We                                                ___            affirm the judgment for the following reasons.                       (1)  Petitioner alleges a deprivation of his rights            to confrontation, compulsory process,  due process and  equal            protection of the laws, in  a trial court ruling that limited            the  scope  of  co-defendant Flores's  testimony.    The same            arguments   were   raised,   considered,   and  rejected   on            petitioner's  direct appeal.   United States v.  Alvarez, 987                                           _____________     _______            F.2d 77, 81-83 (1st Cir.), cert. denied, 510 U.S. 849 (1993).                                       ____________            They may not be resurrected on collateral review.  See Murchu                                                               ___ ______            v. United States,  926 F.2d 50, 55 (1st  Cir.), cert. denied,               _____________                                ____________            502 U.S. 828 (1991).                      (2)  Petitioner alleges  ineffective assistance  of            counsel  at trial,  and related  deprivations  of his  rights            under  the  Fourteenth  Amendment,  in  connection  with  the            erroneous  admission  into evidence  of  co-defendant Matos's            pre-trial  statement.   However, to  sustain  such a  claim a            petitioner  must show  prejudice, meaning  that  but for  his            counsel's  alleged error the  result of the  proceeding would            have been  different.   See Argencourt  v. United  States, 78                                    ___ __________     ______________            F.3d 14,  15 (1st Cir.  1996).  On direct  appeal, petitioner            made the  same argument as  to prejudice that he  makes here,            i.e., that "spillover prejudice" from the erroneous admission                                         -2-            of Matos's statement entitled him to a reversal or new trial.            A  panel of  this  court concluded  that  although Matos  was            entitled to  a reversal  due to the  error, as  to petitioner            there  was sufficient evidence to sustain the jury's verdict.            Alvarez,  987  F.2d at  83-84.    Thus  this claim,  too,  is            _______            foreclosed by the decision on  direct review, and we need not            reach   petitioner's   allegation    that   trial   counsel's            performance in this regard was deficient.                      (3) Petitioner claims that the district court erred            at sentencing in  attributing to him the total  weight of the            cocaine found  in all  three codefendants'  suitcases.   This            alleged  nonconstitutional, nonjurisdictional  error was  not            raised on direct appeal.   It may not  be considered for  the            first  time under     2255 absent  a showing  of "exceptional            circumstances"  amounting  to   a  complete  miscarriage   of            justice.  Knight  v. United States, 37 F.3d  769, 772-73 (1st                      ______     _____________            Cir. 1994).  No exceptional circumstances were shown here.1                                                                      1                      Although no other issues are raised in petitioner's            briefs, appellee spontaneously  argues that defense counsel's            failure  to call  petitioner as  a witness  at the  trial was            probably  a deliberate  strategic decision.   Petitioner  now                                            ____________________               1   While this case  was pending on appeal,  the President               1            signed into law the Antiterrorism and Effective Death Penalty            Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996).            Although neither party has raised  the issue, we note that we            need not  decide in this  case whether any of the  amendments            in the Act apply, since it would not alter our disposition.                                         -3-            contends that  he needs  the assistance of  counsel to  brief            this  new question.   As  the  issue itself  is not  properly            before us (it was not squarely presented to the court below),            and  in  any event  we  see  no  reason to  appoint  counsel,            petitioner's supplementary memorandum seeking reconsideration            of our order denying an appointment of counsel is denied.                                                                  ______                      The judgment below is affirmed.                                            ________                                         -4-
