
USCA1 Opinion

	




          September 26, 1994    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1148                                            RICARDO DIAZ-GALLEGO,                                Defendant, Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Cyr and Boudin, Circuit Judges.                                           ______________                                 ___________________               Ricardo Diaz-Gallego on brief pro se.               ____________________               Guillermo Gil,  United States  Attorney, and Jose  A. Quiles               _____________                                _______________          Espinosa, Senior  Litigation  Counsel, United  States  Attorney's          ________          Office, on brief for respondent.                                   __________________                                  __________________                      Per  Curiam.     Ricardo  Diaz-Gallego  appeals the                      ___________            denial  of his  motion to  vacate  a conviction  and sentence            under 18 U.S.C.   2255.  We affirm.                       Appellant  and several other persons were indicted            in  May,  1987,  for  possession with  intent  to  distribute            approximately  1700 kilograms  of cocaine  on board  a vessel            subject  to  the  jurisdiction   of  the  United  States,  in            violation of  46 U.S.C. App.    1903, and 18 U.S.C.    2.  He            initially  pled not guilty, but then moved to change his plea            to  guilty.  A joint hearing was  held on August 25, 1987, at            which the district court accepted appellant's guilty plea, as            well  as  the guilty  pleas  of  three of  his  codefendants.            Appellant  was later  sentenced to forty  years in  prison, a            ten-year term  of supervised release, and  a special monetary            assessment of  $50.  He did  not appeal.  This    2255 motion            was filed in September, 1989.                      Appellant argues  that the district  court erred in            declining to  hold an evidentiary hearing  on his application            for post-conviction relief.  However, there is no presumption            in  favor of  an evidentiary  hearing under    2255.   United                                                                   ______            States  v.  McGill, 11  F.3d  223,  225-26 (1st  Cir.  1993).            ______      ______            Rather,  the    2255  petitioner  bears the  usual  burden of            persuading the  court that  his motion cannot  be effectively            "heard" on the papers.   Id. at 225.  An  evidentiary hearing                                     ___            is unnecessary when the petitioner's allegations merely state                                         -2-            conclusions instead of facts, are contradicted by the record,            inherently incredible, or invalid as a matter of law.  Id. at                                                                   ___            226 (citations omitted); United  States v. Mosquera, 845 F.2d                                     ______________    ________            1122, 1124 (1st Cir. 1988).  In addition where, as  here, a              2255 petition is  brought before the judge  who also presided            at  the previous  proceedings,  the judge  may make  findings            based  on  his  own  knowledge  of  the  proceedings  without            convening an additional hearing.  McGill, 11 F.3d at 225.                                                ______                      We  find  no  error  in  the  court's  decision  to            dispense  with an  evidentiary  hearing under  this standard.            There  was  also  no  error  in  the  court's  decision  that            appellant's contentions, discussed  seriatim below, failed to                                                ________            establish a  "fundamental defect" in the  plea and sentencing            proceedings, or  any other  reason for  relief under    2255.            See  Laliberte v.  United States,  25 F.3d  10, 13  (1st Cir.            ___  _________     _____________            1994)  (observing  that     2255 relief  is  available  after            sentencing only  for "a fundamental  defect which  inherently            results  in  a  complete  miscarriage  of  justice,"  or  "an            omission inconsistent  with the  rudimentary demands of  fair            procedure") (citations omitted).                      First, appellant challenged the authenticity of the            transcript of the  change of plea  hearing produced from  the            government's  files.   In support,  appellant pointed  to the            difficulties  which both he and the  court had experienced in            obtaining a  copy of  the transcript.   On several  occasions                                         -3-            beginning in November, 1989, the magistrate ordered the court            reporter to produce  a copy of the transcript  for appellant,            but the  reporter had  apparently misplaced  his notes.   The            magistrate ultimately  obtained a  transcript,  and issued  a            report in March,  1992.  Appellant, however,  alleged that he            had not received a transcript copy, and petitioned this court            for  a writ of mandamus  in January, 1993.   The government's            response to the mandamus petition appended a transcript copy,            along  with a  certificate  of  service,  so  we  denied  the            petition on  the assumption that appellant  had thus received            his copy.                       Nonetheless, appellant then  informed the  district            court that he still had  not received the transcript.   In an            abundance of caution the  court ordered the clerk to  send to            appellant  yet  another  copy  of the  transcript  which  the            government  had made available.   Appellant  finally conceded            receipt  of  a  transcript   copy  thus  produced,  but  then            objected,   without  further   specifics,  that  it   was  an            "invention."                        While  the  delay  occasioned by  these  events  is            troubling,   appellant's   generalized   objection   to   the            authenticity  of  the transcript  is  refuted  by the  record            facts.            The  transcript which  the  government produced  included the            court  reporter's  certification.    This  certification  was                                         -4-            credited by the  district judge, who  had also presided  over            the  change  of plea  hearing, as  prima  facie proof  of the            authenticity and accuracy of the transcript.  See 28 U.S.C.                                                            ___            753(b)  (1982)  (transcript  certified  by  designated  court            reporter "shall be deemed prima  facie a correct statement of            the testimony  and proceedings"); United States  v. Ochs, 548                                              _____________     ____            F.  Supp.   502  (S.D.N.Y.  1982)  (relying   upon  statutory            presumption),  aff'd, 742  F.2d  1444 (2d  Cir. 1983),  cert.                           _____                                    _____            denied,  464 U.S. 1073 (1984).   In addition,  the origin and            ______            accuracy of the transcript  is corroborated by docket entries            which reflect that in June, 1989, the court reporter produced            an  original  transcription  for  codefendant  Agressot-Coas.            (Dkt.  124).   Both  Agressot-Coas  and codefendant  Padilla-            Pallacios have  pursued appeals based on  seemingly identical            transcript copies  without any  challenge to the  accuracy of            its contents.   Since  the material  portions of the  hearing            were  identical  for  all  three  defendants,  and  appellant            offered  no  facts  to  the contrary,  the  district  court's            reliance on  the reporter's certification, and presumably the            court's own memory,  was not clearly erroneous.   See McGill,                                                              ___ ______            11 F.3d at 223  n.2 (on a   2255  motion, fact-based findings            are reviewed for clear error) (citations omitted).                      Second, appellant attacked the validity of his plea            and  sentence with  an allegation  that his  attorney falsely            assured  him, or  the  government falsely  promised, that  he                                         -5-            would be sentenced to no more than ten years in prison.  As a            result, he claimed that his plea was involuntary, uninformed,            and rendered without the effective assistance of counsel.                        The  existence  of  such  a  promise,  however,  is            contradicted by  facts in  the record, including  appellant's            own sworn  testimony and the  documents he filed.   Appellant            signed a plea agreement which reserved the government's right            to "allocution"  at  the time  of  sentencing, but  left  the            sentence itself to the "sound discretion of the  court."   He            acknowledged in open court  that he understood that  his plea            agreement  in no way curtailed or diminished the power of the            court to impose a penalty up to the maximum  provided by law.            He  said that  he  understood  the  charge against  him,  the            minimum and  maximum penalties of imprisonment  that might be            imposed (ten years to  life), and swore that his  guilty plea            was  not induced by any  outside predictions or prophesies of            the ultimate sentence  to be  imposed.1  His  change of  plea            was  accepted  only  after  a  thorough  exploration  of  all            elements of a  knowing and voluntary  guilty plea under  Rule                                            ____________________            1.  Appellant alleges that  he was misled by the  court's use            of  the words "predictions" or  "prophecies."    He claims he            would have  answered differently  had the court  instead used            the word  "promises."   Whatever the  semantic possibilities,            this  assertion, too,  is refuted by  the record  which shows            that appellant specifically  denied any collateral "promises"            when  he subsequently  completed the  written  plea petition.            Moreover,  "we  have  never held  the  district  courts to  a            formula  of magic words" in meeting  the requirements of Rule            11."   United States v. Medina-Silverio, 1994 WL 364135 at *3                   _____________    _______________            (1st Cir. July 19, 1994).                                         -6-            11.  Fed. R. Crim. P. 11; see Medina-Silverio, 1994 WL 364135                                      ___ _______________            (detailing core elements  required of a rule 11  colloquy and            collecting   cases).      Appellant   then   reiterated   his            understanding  of  the court's  full  authority, the  maximum            penalty  that  might  be  imposed, and  the  absence  of  any            collateral  promises, in  a written  plea petition  completed            after  the hearing.    He also  omitted  any mention  of  the            promise he now alleges when he appeared for sentencing.                    "A  defendant  is  ordinarily  bound  by  his  or  her            representations  in  court   disclaiming  the  existence   of            additional promises."  Bemis v. United States, 1994 WL 376057                                   _____    _____________            at  *2 (1st Cir. July 22, 1994) (citations omitted); see also                                                                 ________            Hernandez-Hernandez v. United States,  904 F.2d 758, 762 (1st            ___________________    _____________            Cir. 1990) (sworn Rule 11 statements are presumptively true);            United States v.  Butt, 731 F.2d  75, 80 (1st  Cir. 1984)  (a            _____________     ____            defendant  will  not be  heard  to  controvert  his  Rule  11            statements in a subsequent    2255 motion unless he  offers a            valid  reason for  departing from  the apparent truth  of his            earlier statements).                       In  the absence  of unusual  facts that  might lend            plausibility to appellant's belated  contradiction of his own            sworn  testimony,  the court  did  not err  in  rejecting his            conclusory   allegation   without  an   evidentiary  hearing.            Compare  Bemis, slip  op. at  7-8 (in  unusual circumstances,            _______  _____            where   appellant  offered   affidavits   from   two   former                                         -7-            prosecutors,   and  pointed  to  specific  supporting  facts,            evidentiary hearing should be held); Hernandez-Hernandez, 904                                                 _________ _________            F.2d  at 762-63  (evidentiary  hearing should  be held  where            petitioner supported his  claim with an  affidavit containing            specific factual  detail as  well as  the affidavits  of five            corroborating  witnesses).  Likewise, we see  no error in the            court's conclusion,  after a thorough review,  that there was            no support  in the record for  appellant's further allegation            that but  for the alleged misrepresentation he would not have            pled guilty.  See Hill v. Lockhart, 474 U.S. 52, 59-60 (1985)                          ___ ____    ________            (in  order to show "prejudice" from alleged counsel errors, a            defendant must  show that  there is a  reasonable probability            that  he would  not have pled  guilty but would  have gone to            trial).                      Third, appellant  argued that his  counsel rendered            ineffective  assistance  after  the  change  of plea  hearing            because  counsel did  not  attend the  subsequent  debriefing            sessions,   "utterly  failed  to  assist  appellant"  at  the            sentencing hearing, and did not rebut an alleged governmental            representation that appellant's cooperation had been minimal.                      Again, however, the record  contradicts appellant's            factual assertions.  At the sentencing hearing counsel made a            detailed  objection  to  the  presentence  report  based   on            appellant's  "substantial  cooperation" with  the government.                                         -8-            The  government  neither  denied  nor  minimized  appellant's            cooperation,  but agreed with  counsel's representations, and            the court  was thus persuaded to  take appellant's assistance            into consideration.  Further,  the court invited appellant to            speak  on his own behalf, but appellant indicated that he was            content with his counsel's representations.                        The  district  judge,  who  had  presided  at  both            hearings,   concluded   that   appellant    was   competently            represented,  and  suffered  no  prejudice  due to  counsel's            absence  from the  debriefings.   While  legal questions  are            reviewed  de  novo,  a  claim of  ineffective  assistance  of                      __  ____            counsel  is a mixed question of  law and fact.  Strickland v.                                                            __________            Washington, 466  U.S. 668, 698 (1984).  When the mix is fact-            __________            dominated,  as it  is here,  we necessarily  place relatively            greater  reliance on the fact-finder.  See McGill, 11 F.3d at                                                   ___ ______            226  n.2  (observing  differences  in  courts' approaches  to            review of ineffective assistance claims).  Further  deference            is due  the  judge's  first-hand  observations  of  counsel's            performance.    Id.  at 225.    Appellant  points to  nothing                            ___            suggesting  error in  the court's  conclusion  and we  see no            error.                      Lastly  appellant asserts  two  challenges  to  the            statutory authority  for his sentence.   Neither argument was            properly  preserved  for  appeal,   but  we  note  that  both            contentions appear  foreclosed by  our  decisions in  related                                         -9-            appeals  brought  by appellant's  codefendants.   In Padilla-                                                                 ________            Palacios v. United States,  932 F.2d 31, 33 (1st  Cir. 1991),            ________    _____________            following the  Supreme Court's decision  in Gozlon-Peretz  v.                                                        _____________            United  States,   498  U.S.  395  (1991),   we  rejected  the            ______________            contention  that  the  district  court erred  in  imposing  a            mandatory  term   of  supervised  release  for   this  crime,            committed during  the "hiatus  period" between  two different            versions  of the  federal  drug  law.    We  also  found,  in            circumstances   indistinguishable    from   those   attending            appellant's  plea, that  the  codefendant's rights  were  not            otherwise  violated by  the  court's statement  at the  joint            change of  plea hearing that  it would not  impose a  term of            supervised release.   Padilla-Palacios, 932 F.2d  at 35.   In                                  ________________            United States v. Agressot-Coas, Dkt. no. 89-1187, slip op. at            _____________    _____________            9  n.  10 (1st  Cir.  May 23,  1990),  we rejected  the other            statutory   challenge,   that   the  increased   imprisonment            penalties in the  Anti-Drug Abuse  Act of 1986,  21 U.S.C.               960(b), did not apply to this crime.  Since the ADAA  penalty            provision was enacted seven months before  the date that this            crime  was committed, and there was no expression by Congress            of a  contrary intent, we  concluded that the  district court            had correctly applied the increased penalty provision in this            case.   Accord Gozlon-Peretz, 498  U.S. at 404  (applying the                    ______ _____________            general  rule that statute takes effect  on date of enactment                                         -10-            in  absence  of a  clear  contrary direction  by  Congress to            interpretation of other provisions of ADAA).                        In  sum,  appellant  has demonstrated  neither  his            entitlement to an  evidentiary hearing on,  nor error in  the            denial of, the motion for relief under 28 U.S.C.   2255.                        Affirmed.                       ________                                         -11-
