Alvarez v. United States ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-1668





                                   VICTOR ALVAREZ,



                                Plaintiff, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Victor Alvarez on brief pro se.
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            Guillermo Gil, United States Attorney,  Sonia I. Torres, Assistant
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        United States Attorney, and Jos  A. Quiles-Espinosa, Senior Litigation
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        Counsel, on brief for appellee.





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                                    August 2, 1996

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                      Per  Curiam.   This is  an  appeal from  a district
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            court order  denying a  motion by  petitioner Alvarez  to set



            aside his conviction and sentence.  See 28 U.S.C.   2255.  We
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            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
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            F.2d 77, 81-83 (1st Cir.), cert. denied, 510 U.S. 849 (1993).
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            They may not be resurrected on collateral review.  See Murchu
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            v. United States,  926 F.2d 50, 55 (1st  Cir.), cert. denied,
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            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
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            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







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            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
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            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
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            Cir. 1994).  No exceptional circumstances were shown here.1
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                      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






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               1   While this case  was pending on appeal,  the President
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            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.



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            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.
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                      The judgment below is affirmed.
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