Rojas v. United States

Opinion

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April 8, 1996         [NOT FOR PUBLICATION]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  Attorney,   Edwin  O.   Vazquez,
            ______________                                ___________________

        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior
                                               _______________________

        Litigation Counsel, on brief for appellee.

                                 ____________________


____________________



Per Curiam.  Eduardo Robinson-Munoz  and Abel Rojas
                      __________



            appeal  from the  district  court's summary  denial of  their



            motions under 28 U.S.C.   2255.  We affirm.
                                                ______



                      I.  Robinson
                          ________



                      Robinson challenges  his  conviction after  a  jury



            trial  of aiding and abetting the  possession, with intent to



            distribute,  of marijuana  aboard a  vessel, 46  U.S.C.App.  



            1903(a),  (c)(1)(A) & 18 U.S.C.   2.  Specifically, he argues



            that the  vessel ("the  Delfin") was  not  subject to  United



            States  jurisdiction because  it  was not  "a vessel  without



            nationality."   We rejected  that argument on  direct appeal.



            In United  States v. Robinson-Munoz,  961 F.2d 300  (1st Cir.
               ______________    ______________



            1992),  we  held  that  the government's  presentation  of  a



            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.   Robinson  again challenged  the United
                     ___



            States' jurisdiction  over the  Delfin in  his  first    2255



            motion.   The district court ruled that the issue had already



            been  decided on direct  appeal and could  not be relitigated



            under   2255.  Robinson-Munoz v. United States,  819 F. Supp.
                           ______________    _____________



            1136, 1142 (D. Puerto Rico 1993).  In   his  second      2255



            motion, Robinson  relied upon  new evidence to  challenge the



            United States'  jurisdiction over the  Delfin.  Specifically,



            Robinson relied upon  a letter  dated May 10,  1993 from  the


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Secretary  General  of the  Colombian Department  of National



            Defense ("the May 10,  1993 letter").  The letter  stated, in



            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  the boarding

                      of the motor vessel  "DELFIN" on the 13th

                      of October, 1990.



            Robinson  appeals from the district court's summary dismissal



            of  his  second    2255  motion.    On  appeal, he  seeks  to



            introduce   yet  more   new   evidence  to   show  that   the



            certification  of the  Secretary  of  State was  fraudulently



            prepared (i.e., no denial  of registry was ever given  by the



            Colombian  government) and, therefore,  that the  Due Process



            Clause requires that his  conviction and sentence be vacated.



            We affirm.



                      The district  court did  not err in  dismissing the



            motion  without holding  an  evidentiary hearing.  A "   2255



            motion  may   be  denied  without  a  hearing   as  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.'"  Shraiar v. United  States, 736
                                           _______    ______________



            F.2d  817,  818  (1st Cir.  1984)  (citations  omitted).   In



            addition,  "when,  as in  this case,  a petition  for federal



            habeas relief is presented  to the judge who presided  at the



            petitioner's trial,  the judge  is at  liberty to  employ the


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knowledge   gleaned  during  previous  proceedings  and  make



            findings  based  thereon  without  convening   an  additional



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



            1993).  



                      The relevant  evidence  before the  district  court



            when it ruled  upon the   2255  motions consisted of the  May



            10, 1993 letter.   At  most, that letter  indicates that  the



            Colombian authorities never  gave the  Coast Guard  officials



            permission  to board the Delfin.  Even accepting the truth of



            that statement, it does  not entitle Robinson to relief.   In



            this  case,  jurisdiction   was  based  upon   the  Colombian



            government's denial  of registry. The denial  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  the Colombian  authorities  denied  the



            existence  of  a  General  Rodriquez  at  the  time  that  he



            allegedly denied  registry --  was never before  the district



            court.   The  argument that  it constitutes  newly discovered



            evidence  and  establishes a  violation  of  the Due  Process



            Clause entitling Robinson  to   2255 relief  cannot be raised



            for the  first time on  appeal.  "It  is a bedrock  rule that



            when  a party has not  presented an argument  to the district


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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  they do  not seek  to supplement  a pleading  but to



            introduce  new  evidence in  support of  a    2255  motion on



            appeal.)  "[A]ppellate  courts retain  the power  to dispense



            with the  raise-or-waive  rule  in order  to  avoid  a  gross



            miscarriage of justice." Slade,  980 F.2d at 31.  This is not
                                     _____



            such  a case,  however.   Robinson has failed  to demonstrate



            that  the  new evidence  "is 'so  compelling as  virtually to



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



                      II.  Rojas
                           _____



                      Rojas  pled  guilty  and has  never  contested  the



            validity of his guilty plea.  We note initially that although



            the issue is  not free from  doubt, "the better  view may  be



            that  a  valid  guilty plea,  as  'an  admission  of all  the



            elements  of a  formal  criminal charge,'  admits even  those



            allegations  which  form the  factual  predicate for  federal



            jurisdiction." Valencia  v. United States, 923  F.2d 917, 921
                           ________     _____________



            (1st  Cir. 1991).    We need  not  resolve that  issue  here,



            however, because even if  we assume that Rojas did  not waive



            the  jurisdictional  challenge  by  pleading guilty,  he  has



            failed to show that the district court erred in denying his  



            2255 motion.


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In his   2255  motion, Rojas makes the  same claims



            and relies  upon the same new evidence as did Robinson in his



            motion.   The  new evidence  -- the  May 10,  1993 letter  --



            submitted with Rojas'   2255 motion did not disprove, or even



            contradict, denial  of registry,  however.  Accordingly,  the



            district  court  did  not  err in  summarily  dismissing  the



            motion.  Rojas, like Robinson, also seeks relief on the basis



            of the February 8,  1996 letter.  For  the same reasons  that



            the  late-submitted  evidence  did  not  entitle Robinson  to



            relief under   2255, it is of no avail to Rojas.



                      The  district  court's  summary  dismissals  of the



            motions are  affirmed.
                         ________


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