
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1233                               ANGEL RIVERA-FELICIANO,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                     Coffin and Campbell, Senior Circuit Judges.                                          _____________________                                 ____________________            Jose F. Quetglas Jordan for appellant.            _______________________            Philip  Urofsky,  Attorney,  with  whom  John  C.  Keeney,  Acting            _______________                          ________________        Assistant Attorney General, Guillermo Gil, United States Attorney, and                                    _____________        Theresa M.B.  Van Vliet,  Chief,  Narcotic &  Dangerous Drug  Section,        _______________________        Criminal Division, U.S. Department  of Justice, were on brief  for the        United States.                                 ____________________                                   January 9, 1997                                 ____________________                      Per Curiam.  Upon  consideration of the record, the                      __________            briefs and  the  arguments, we  affirm  the judgment  of  the            district court  for substantially the  same reasons expressed            by that court in its opinion and order of January 20, 1996.1                      We  add  the following:    With  regard to  Rivera-            Feliciano's  ineffective  assistance  of counsel  claim,  his            counsel's  failure to move to  dismiss the 1986 charges based            on   the   earlier  plea   agreement   did   not  demonstrate            constitutionally  ineffective  assistance  as,   for  reasons            explained in  the opinion below, there  was little likelihood            that such a motion  would have been allowed.   See Strickland                                                           ___ __________            v. Washington, 466 U.S. 668, 687-696 (1984).               __________                      Rivera-Feliciano contends that  the district  court            erred in assigning  his 28  U.S.C.   2255  petition to  Judge            Perez-Gimenez, the judge who had presided over the 1986 trial            and  had sentenced him in  Cr. Case No.  86-419(PG).  Rather,            appellant argues, the case should have gone  to Judge Pieras,            the  judge who in  1985 had accepted  his guilty plea  in Cr.            Case No. 85-114(JP),  and sentenced  him on the  plea.   This            contention runs counter  to Rule 4(a) of the  Rules Governing                                            ____________________            1.  The district court's opinion is published as Feliciano v.                                                             _________            United States,  914 F. Supp.  776 (D.P.R.  1996).  We  note a            _____________            typographical  error in  the opinion:   on  page 778,  at the            beginning  of   the  second   paragraph  under   the  heading            "Background," "1986"  should read "1985."   See United States                                                        ___ _____________            v. Rivera-Feliciano, 930 F.2d 951, 952 (1st Cir. 1991).               ________________                                         -2-            Section  2255  Proceedings  for  the United  States  District            Courts, which provides, in relevant part:                      The  original  motion shall  be presented                      promptly to  the  judge of  the  district                      court  who presided at the movant's trial                      and sentenced him,  or, if the judge  who                      imposed sentence was not the trial judge,                      then it shall go to that judge who was in                      charge  of that  part of  the proceedings                      being attacked by the movant.            Rules  Governing  Section  2255  Proceedings for  the  United            States  District Courts,  Rule 4(a),  28 U.S.C. foll.    2255            (1994).                      The  section  2255  petition  here  challenged  the            convictions and sentences following trial  in 1986.  As Judge            Perez-Gimenez  had   also  been  the  trial   judge  in  that            proceeding,  he  was  the   appropriate  judge  to  hear  the            petition.      That  petitioner's   challenge  to   the  1986            convictions  and  sentences  was   based  on  the  1985  plea            proceeding is immaterial.                      Finally, we  find no merit in the argument that the            district court was  required to  accept as true,  or hold  an            evidentiary   hearing   on,   Rivera-Feliciano's   conclusory            allegation  that the  government had  sufficient evidence  to            indict him in  1985 for  charges later included  in the  1986            indictment.   See Shraiar v. United States, 736 F.2d 817, 818                          ___ _______    _____________            (1st  Cir. 1984)  ("A   2255  motion may be  denied without a            hearing  as to those allegations  which, if accepted as true,                                         -3-            entitle  the  movant  to no  relief,  or  which  need not  be            accepted as  true because  they state conclusions  instead of            facts . . . .") (citations omitted).                        As suggested in  the district court's  opinion, see                                                                      ___            Feliciano, 914 F. Supp. at 781 (quoting from United States v.            _________                                    _____________            Lovasco, 431 U.S. 783, 794-95 (1976)), it will  ordinarily be            _______            up  to  the government  to  decide  when  it  has  sufficient            evidence  to  prosecute.    Here, the  government  offered  a            plausible  reason for  its  delay, which  the district  judge            could evaluate based on  his having presided over  the trial,            to  wit,  that the  testimony  of  Jos  Panzardi-Alvarez  was            deemed  essential to  the 1986  conspiracy prosecution.   The            district court's determination that a separate hearing on the            state  of the government's evidence in 1985 was not needed in            order  to permit it to rule intelligently on the petition was            well within its  discretion.  See  Parsons v. United  States,                                          ___  _______    ______________            404 F.2d 888 (5th  Cir. 1968) (On motion to  vacate sentence,            federal  district court  has discretion to  ascertain whether            claim  is substantial  before  granting  a  full  evidentiary            hearing) (per curiam).                      Affirmed.                      ________                                         -4-
