USCA1 Opinion

April 8, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1902

ABEL ROJAS,
Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.
____________________

No. 95-1906

EDUARDO A. ROBINSON-MUNOZ,
Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.
_____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

___________
Stahl and Lynch, Circuit Judges.
______________

_____________________

Abel Rojas on brief pro se.

__________
Eduardo A. Robinson on brief pro se.
___________________
Guillermo Gil,
______________

United

States

Assistant United States Attorney,

Attorney,

Edwin O.
Vazqu
_________________

and Jose A. Quiles-Espinosa, Sen

_______________________

Litigation Counsel, on brief for appellee.

____________________

____________________

Per Curiam.
__________

Eduardo Robinson-Munoz

and Abel Rojas

appeal

from the

district

motions under 28 U.S.C.

I.

court's summary

2255.

We affirm.
______

his

conviction after

of aiding and abetting the

distribute,

of marijuana

(c)(1)(A) & 18 U.S.C.

that the

vessel ("the

nationality."

2.

Delfin") was

jurisdiction because

We rejected

it

we

held

that

vessel, 46

jury

U.S.C.App.

Specifically, he argues

not

was not

subject to

United

"a vessel

without

that argument on

In United States v. Robinson-Munoz,

______________
______________

1992),

possession, with intent to

aboard a

1903(a),

States

their

Robinson
________

Robinson challenges

trial

denial of

direct appeal.

961 F.2d 300

the government's

(1st Cir.

presentation

of

certification of

the Secretary of State

indicating that the

Colombian government had denied the Delfin captain's claim of

Colombian registry "prove[d] jurisdiction beyond a reasonable

doubt."

Id. at 305.
___

States' jurisdiction

motion.

been

under

Robinson

over the

again challenged

Delfin in

his

the United

first

2255

The district court ruled that the issue had already

decided on direct

2255.

appeal and could

Robinson-Munoz v. United States,

______________
_____________

1136, 1142 (D. Puerto Rico 1993).

motion, Robinson

United States'

not be relitigated

relied upon

In

a letter

second

new evidence to

jurisdiction over the

Robinson relied upon

his

Delfin.

dated May 10,

819 F. Supp.

2255

challenge the

Specifically,

1993 from

the

-2-

Secretary

General

of the

Defense ("the May 10,

Colombian Department

1993 letter").

of National

The letter

relevant part, as follows:

having

reviewed the files of the General

Command of the

Armed forces

and of

the

National Navy, no document whatsoever was

found, of authorization for
of the motor vessel
of October, 1990.

the boarding

"DELFIN" on the 13th

stated, in

Robinson

of

appeals from the district court's summary dismissal

his

second

introduce

2255

yet

certification

motion.

more

of the

new

Colombian

evidence

Secretary

prepared (i.e., no denial

On

of

to

show

State was

seeks

that

to

the

fraudulently

of registry was ever given

government) and, therefore,

Clause requires that his

appeal, he

that the

by the

Due Process

conviction and sentence be vacated.

We affirm.

The district

motion

without holding

motion

may

be

denied

court did

an

not err in

dismissing the

evidentiary hearing.

without

hearing

as

A "

2255

to

those

allegations which, if accepted as true, entitle the movant to

no relief, or which need not be accepted as true because they

state conclusions instead of facts, contradict the record, or

are 'inherently incredible.'"

F.2d

817,

addition,

Shraiar v. United States, 736

_______
______________

818

(1st Cir.

1984)

"when,

as in

this case,

habeas relief is presented

petitioner's trial,

(citations

omitted).

a petition

for federal

to the judge who presided

the judge

-3-

is at

liberty to

In

at the

employ the

knowledge

findings

gleaned

based

during

thereon

previous

without

proceedings

convening

an

and

make

additional

hearing." United States v. McGill, 11 F.3d 223, 225 (1st Cir.

_____________
______

1993).

The relevant

when it ruled

evidence

upon the

10, 1993 letter.

At

2255

that statement, it does

this

case,

gave the

to board the Delfin.

jurisdiction

government's denial

district

court

motions consisted of the

most, that letter

Colombian authorities never

permission

before the

indicates that

Coast Guard

the

officials

Even accepting the truth of

not entitle Robinson to relief.

was

May

based

upon

of registry. The denial

the

In

Colombian

of registry was

proved by a certification by the Secretary of State.

The May

10, 1993 letter does not even contradict, much less disprove,

the statements made in the certification.

The document that appellants sought to introduce as

"Supplemental Pleadings on Appeal" -- a letter dated February

8,

1996,

in

which

existence

of

allegedly denied

court.

The

evidence

and

the Colombian

General

registry --

argument that

when

first time on

a party has not

at

the

violation

to

appeal.

of

2255 relief

"It

denied

time

was never before

it constitutes

establishes a

Clause entitling Robinson

for the

Rodriquez

authorities

he

the district

newly discovered

the Due

Process

cannot be raised

is a bedrock

presented an argument

that

the

rule that

to the district

-4-

court, she may not unveil it in the court of appeals." United

______

States
______

v.

Slade,
_____

980

F.2d

27,

30

(1st

Cir.

1992).

(Appellants' reliance upon Fed. R. Civ. P. 15(d) is misplaced

because

introduce

appeal.)

they do

not seek

to supplement

new

evidence in

support of

"[A]ppellate

courts retain

a pleading

2255

the power

but to

motion on

to dispense

with the

raise-or-waive

rule

in order

miscarriage of justice." Slade,

_____

such

a case,

that

the

however.

new evidence

to

avoid

980 F.2d at 31.

Robinson has failed

"is 'so

gross

This is not

to demonstrate

compelling as

virtually to

insure appellant's success.'" Id. at 31.

___

II.

Rojas
_____

Rojas

pled

guilty

validity of his guilty plea.

the issue is

that

elements

not free from

valid

of a

allegations

guilty plea,

formal

which

never

contested

the

We note initially that although

doubt, "the better

as

'an

admission

criminal charge,'

form the

jurisdiction." Valencia

and has

factual

view may

be

of all

the

admits even

predicate for

v. United States, 923

those

federal

F.2d 917, 921

________

(1st

Cir. 1991).

We need

however, because even if

the

jurisdictional

_____________

not

resolve that

issue

we assume that Rojas did

challenge

by

pleading guilty,

here,

not waive

he

has

failed to show that the district court erred in denying his

2255 motion.

-5-

In his

and relies

motion.

2255

The

new evidence

contradict, denial

motion.

court

-- the

May 10,

1993 letter

--

2255 motion did not disprove, or even

of registry,

did

not

err in

however.

summarily

Accordingly,

the

dismissing

the

Rojas, like Robinson, also seeks relief on the basis

of the February 8,

the

same claims

upon the same new evidence as did Robinson in his

submitted with Rojas'

district

motion, Rojas makes the

late-submitted

relief under

The

motions are

1996 letter.

evidence

did

For

the same reasons

not

that

entitle Robinson

to

2255, it is of no avail to Rojas.

district

affirmed.
________

court's

summary

dismissals

of the

-6-