USCA1 Opinion

May 9, 1996
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1880

CARLOS FERRER-CRUZ,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Lynch,

Circuit Judges.
______________

____________________

Carlos Ferrer-Cruz on brief pro se.

__________________
Guillermo Gil, United
_____________

States Attorney, Jorge E. Vega-Pacheco

_____________________

Nelson Perez-Sosa, Assistant

__________________

United States

Attorneys, on

brief

appellee.

____________________

____________________

Per Curiam.
__________

with intent to

Following

his

conviction for

possession

distribute cocaine, appellant Carlos

Ferrer-

Cruz filed

a motion under 28

U.S.C.

2255

seeking to have

his sentence vacated, set aside, or corrected.

was assigned

to the

district

trial and sentencing

hearing.

Governing

had

were

his

never been

transcribed and

lost, appellant was

recollection of

dismissed.

entirely

(hereinafter:

the

transfer.

the court

on the

a statement of

The motion

motion judge).

a de

reasons

record, the

to

another

was then

be denied

which

are

not

instant case

was

district

Appellant did not

novo

Rules

reporter's notes

who recommended that it

for

the

the sentencing hearing

the proceedings.

transferred

After

of the

ordered to provide

Thereafter,

clear based

administratively

Since

motion

presided over

See Rule 4(a)

___

2255 Proceedings.

referred to a magistrate,

and

judge who

The

review, the

judge

object to

motion judge

__

adopted

the

magistrate's

____

recommendation.

This

appeal

followed.

Appellant's

judge

Co.,
___

823

is that

other than the sentencing judge to

motion.

to

sole argument

it was error

for a

rule on his

2255

This argument is waived since it was never presented

the district court.

68 F.3d 1443, 1449

See, e.g., Carreiro v. Rhodes Gill &

___ ____ ________
_____________

(1st Cir. 1995);

F.2d 660, 666 (1st Cir. 1987).

Clauson v. Smith,
_______
_____

Similarly, appellant has

abandoned any arguments on the merits of the issues raised in

his

2255 motion since he has failed to argue

-3-

the merits in

his appellate brief.

See,
___

e.g., Willhauck
____ _________

v. Halpin,
______

953

F.2d 689, 700 (1st Cir. 1991).

We

add simply

that we

are persuaded

judge -- who

had the

PSR, and the

judgment -- was fully

the issues

benefit of the

raised in the

motion.

suggestion, the motion judge

that the

motion

trial transcript,

in a position

Contrary to

was in a position to

the

to decide

appellant's

make, and

did make, an

independent assessment

of whether

appellant's

sentence would likely have

been different if defense counsel

had

Assuming

acted

differently.

appellant's

review

claims

the PSR

regarding his

proceedings,

premised

and failure

on

of the

arguably

Knight v. United States, 37

______
______________

appellant failed to show

of

an adequate

Moreover,

the PSR

make findings

are cognizable in

procedurally

(1st Cir.

requirement).

to personally

thoroughly details

2255

barred.

See
___

1994)

In any event,

that he was prejudiced by

opportunity

that

opportunity to

court to

F.3d 769, 774

(explaining cause and prejudice

deciding

inadequate

financial condition

they are

without

the lack

review the

PSR.

appellant's financial

condition, and the court's consideration of this condition is

evinced by the fact

then ability

range.

Cf.
___

F.2d 717,

presume

that it chose a fine

to pay and at

United States
_____________

the lower end of

the applicable

v. Wilfred Am. Educ. Corp.,

________________________

719-20 (1st Cir.

that sentencing

within appellant's

1992) (reviewing court

court ignored relevant

-4-

953

will not

evidence in

the

record).

sentencing

Under the

circumstances, we

transcript was essential

claims.

Affirmed.
________

do not

think a

to evaluate appellant's

-2-