
USCA1 Opinion

	




          March 9, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1560        No. 92-2245                               MILTON NELSON-RODRIGUEZ,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                ____________________                                       ERRATA SHEET            November 18, 1992   [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1560        No. 92-2245                               MILTON NELSON-RODRIGUEZ,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                                         -2-                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Maria H. Sandoval for petitioner.            _________________            Lena D. Mitchell,  Criminal Division, Narcotic and Dangerous  Drug            ________________        Section,  Department  of Justice,  with whom  Robert S.  Mueller, III,                                                      _______________________        Assistant Attorney General, Mary Lee Warren, Chief, Criminal Division,                                    _______________        Narcotic  and  Dangerous  Drug  Section, Department  of  Justice,  and        Daniel F. Lopez-Romo, United  States Attorney, were  on brief for  the        ____________________        United States.                                 ____________________                                ____________________                                           -4-                      Per  Curiam.    Appellant  Milton  Nelson-Rodriguez                      ___________            appeals from the judgment of the United States District Court            for the  District of  Puerto Rico  dismissing his  motion for            post-conviction relief  filed pursuant  to 28 U.S.C.    2255.            Appellant  had   earlier  been  sentenced  to  fifteen  years            imprisonment  after  pleading guilty  to  a  violation of  21            U.S.C.   848 under a plea agreement dated May 27, 1986.                      Proceeding  pro  se, appellant  sought to  have his                                  ___  __            sentence  vacated,  alleging  the ineffective  assistance  of            counsel.  A magistrate issued a  report and recommendation on            March 14,  1991, recommending  the  dismissal of  appellant's            section 2255  motion.  The magistrate's  report and recommen-            dation contained  an express  warning that appellant  had ten            days within  which to file  any objections thereto,  and that            failure to  file timely objections  would waive his  right to            obtain review.  See  Dist. Ct. Puerto Rico Local  Rule 510.2;                            ___            United  States v. Valencia-Copete,  792 F.2d  4, 6  (1st Cir.            ______________    _______________            1986).1                      Appellant  secured  an  attorney  who  successfully            moved for an extension of the ten-day deadline.  The district                                            ____________________            1.   We  do not  consider  appellant's contention  that Local            Rule 510.2 is unconstitutional    despite the Supreme Court's            holding to the contrary in Thomas v. Arn, 474 U.S. 140 (1985)                                       ______    ___               because appellant  merely asserts,  without any  developed            argument, that it  is "inconceivable" that such  a rule could            be constitutional.   See Brown v.  Trustees of Boston  Univ.,                                 ___ _____     _________________________            891  F.2d 337,  352 (1st  Cir. 1989)  (issues raised  but not            supported  by  argument  in  appellant's  brief  are   deemed            abandoned).                                         -5-            court granted two more extensions, making  June 24, 1991, the            final  deadline   for   filing  of   objections.     However,            appellant's objections  were not filed in  the district court            until  November 19, 1991,  more  than four  months after  the            expiration of the final extension.                      The  district court  denied  appellant's motion  to            file his objections  out of time,  explaining that the  court            had   already  granted  numerous   extensions  and  rejecting            counsel's various excuses for  failing to make any appearance            or motion before the court between June 24 and November 19.                      We  find no  abuse  of discretion  in the  district            court's denial  of appellant's motion to  file his objections            to the magistrate's report and recommendation after the final            deadline expired.   While procedural defaults  may be excused            "in the interests of  justice," Thomas v. Arn, 474  U.S. 140,                                            ______    ___            155  (1985),  the  district  court  properly  concluded  that            appellant's  counsel offered  no  acceptable reason  for  the            four-month delay.  We have considered appellant's contentions            in  light  of  the record,  and  can  see  no miscarriage  of            justice.   Appellant does not  claim he was  innocent; he was            fully instructed  as to the consequences  of pleading guilty;            he received the very sentence which the prosecution agreed to            recommend to the court; and  while appellant now insists that            had  his attorney rendered accurate advice  he would not have            agreed to so high a sentence, the sentence awarded was not so                                         -6-            obviously  out  of line,  given appellant's  very substantial            criminal  activity,  as  to  suggest  anything approaching  a            miscarriage of justice.                      Affirmed.                      ________                                         -7-
