USCA1 Opinion

September 26, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________
No. 94-1148

RICARDO DIAZ-GALLEGO,
Defendant, Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________
___________________
Before
Torruella, Chief Judge,
___________
Cyr and Boudin, Circuit Judges.
______________

___________________

Ricardo Diaz-Gallego on brief pro se.

____________________
Guillermo Gil, United States Attorney, and Jose A. Quiles
_____________
_______________
Espinosa, Senior Litigation Counsel, United States Attorney's
________
Office, on brief for respondent.

__________________
__________________

Per Curiam.
___________
denial

of his

under 18 U.S.C.

May,

1987,

approximately
subject

to

vacate

2255.

We affirm.

violation of
initially
to

guilty.

for

a conviction

appeals the
and sentence

and several other persons were indicted

possession with

1700 kilograms
the

Diaz-Gallego

motion to

Appellant
in

Ricardo

intent

of cocaine

jurisdiction

46 U.S.C. App.

of

the

to

distribute

on board
United

a vessel

States,

1903, and 18 U.S.C.

2.

in
He

pled not guilty, but then moved to change his plea

A joint hearing was

held on August 25, 1987, at

which the district court accepted appellant's guilty plea, as

well

as

the guilty

Appellant

pleas

was later

of

three of

sentenced to forty

ten-year term

of supervised release, and

assessment of

$50.

He did

not appeal.

his

codefendants.

years in

prison, a

a special monetary
This

2255 motion

was filed in September, 1989.

Appellant argues
declining to

hold an evidentiary hearing

for post-conviction relief.

in

favor of

States
______
Rather,

v.

that the district

an evidentiary
McGill, 11
______

the

persuading the

2255

F.3d

"heard" on the papers.

on his application

However, there is no presumption

hearing under
223,

petitioner

court that

court erred in

2255.

225-26 (1st
bears the

his motion cannot

Id. at 225.
___

An

United
______

Cir.

usual

1993).

burden of

be effectively

evidentiary hearing

is unnecessary when the petitioner's allegations merely state

-2-

conclusions instead of facts, are contradicted by the record,

inherently incredible, or invalid as a matter of law.

Id. at
___

226 (citations omitted); United States v. Mosquera, 845 F.2d

______________
________
1122, 1124 (1st Cir. 1988).

In addition where, as

2255 petition is

brought before the judge

at

proceedings,

the previous

based

on

his

own

of

convening an additional hearing.

We
dispense
There

find

with an

was

also

no

error

error

the

the

any other

Laliberte v.
_________

1994)

(observing

sentencing only
results

in

proceedings

without

court's

in

the

court's

reason for

United States,
_____________
that

decision

is

10, 13

that

of

2255.
(1st Cir.

available

defect which

miscarriage

with the

this standard.

relief under

25 F.3d

for "a fundamental

omission inconsistent

to

plea and sentencing

2255 relief

complete

decision

seriatim below, failed to

________

"fundamental defect" in the

proceedings, or
See
___

findings

hearing under

appellant's contentions, discussed

establish a

may make

McGill, 11 F.3d at 225.

______

in

evidentiary
no

who also presided

the judge

knowledge

here, a

after

inherently

justice,"

or

rudimentary demands of

"an
fair

procedure") (citations omitted).

First, appellant challenged the authenticity of the
transcript of the

change of plea

government's

files.

difficulties

which both he and the

obtaining a

copy of

In support,

hearing produced from

appellant pointed

the transcript.

-3-

the

to the

court had experienced in

On several

occasions

beginning in November, 1989, the magistrate ordered the court

reporter to produce
but the

a copy of the transcript

reporter had

apparently misplaced

magistrate ultimately
report in March,

obtained a

1992.

for appellant,
his notes.

transcript,

Appellant, however,

The

and issued

alleged that he

had not received a transcript copy, and petitioned this court

for

a writ of mandamus

in January, 1993.

The government's

response to the mandamus petition appended a transcript copy,

along

with a

petition on

certificate

of

service,

so

the assumption that appellant

we

denied

the

had thus received

his copy.
Nonetheless, appellant then

informed the

district

court that he still had

not received the transcript.

abundance of caution the

court ordered the clerk to

appellant

yet

government
receipt

another

copy

of the

had made available.

of

objected,

transcript

without

transcript

Appellant

copy

thus

specifics,

delay

occasioned by

send to

which

the

finally conceded

produced,

further

In an

that

it

but

then

was

an

events

is

"invention."
While

the

these

troubling,

appellant's

authenticity

of

generalized

the transcript

is

objection
refuted

to

by the

the
record

facts.
The

transcript which

court

reporter's

the

government produced

certification.

This

included the

certification

was

-4-

credited by the
the

change

district judge, who

of plea

hearing, as

had also presided

prima

facie proof

authenticity and accuracy of the transcript.

753(b)

(1982)

(transcript

certified

reporter "shall be deemed prima

the testimony
F.

Supp.

502

presumption),
denied,
______

by

aff'd, 742
_____

1982)
F.2d

464 U.S. 1073 (1984).

accuracy of the transcript

of the

See 28 U.S.C.
___
designated

court

facie a correct statement of

and proceedings"); United States

_____________
(S.D.N.Y.

over

(relying
1444 (2d

v. Ochs, 548
____

upon

statutory

Cir. 1983),

In addition,

cert.
_____

the origin and

is corroborated by docket entries

which reflect that in June, 1989, the court reporter produced

an

original

(Dkt.

transcription

124).

Both

Pallacios have

were

offered

no

reliance on

Agressot-Coas

without any

Since

identical

codefendant

facts

all
to

three

accuracy of

portions of the

defendants,

the contrary,

Padilla-

seemingly identical

challenge to the

the material

for

Agressot-Coas.

and codefendant

pursued appeals based on

transcript copies
its contents.

for

the

and

hearing
appellant

district

court's

the reporter's certification, and presumably the

court's own memory,

11 F.3d at 223

was not clearly erroneous.

n.2 (on a

2255

See McGill,
___ ______

motion, fact-based findings

are reviewed for clear error) (citations omitted).

Second, appellant attacked the validity of his plea
and

sentence with

assured

him, or

an allegation
the

that his

government falsely

attorney falsely
promised, that

he

-5-

would be sentenced to no more than ten years in prison.

As a

result, he claimed that his plea was involuntary, uninformed,

and rendered without the effective assistance of counsel.

The

existence

contradicted by
own sworn

of

facts in

such

promise,

however,

the record, including

testimony and the

is

appellant's

documents he filed.

Appellant

signed a plea agreement which reserved the government's right

to "allocution"

at

the time

of

sentencing, but

sentence itself to the "sound discretion of the

acknowledged in open court
agreement

said that

he

understood

He

his plea

the ultimate sentence

elements of a

charge against

only

him,

the

that might be

life), and swore that his

not induced by any

accepted

the

provided by law.

maximum penalties of imprisonment

imposed (ten years to

was

court."

in no way curtailed or diminished the power of the

minimum and

was

the

that he understood that

court to impose a penalty up to the maximum

He

left

guilty plea

outside predictions or prophesies of

to be

after

imposed.1
a

thorough

knowing and voluntary

His

change of

exploration

of

guilty plea under

plea
all
Rule

____________________
1. Appellant alleges that he was misled by the court's use
of the words "predictions" or "prophecies."
He claims he
would have answered differently had the court instead used
the word "promises."
Whatever the semantic possibilities,
this assertion, too, is refuted by the record which shows
that appellant specifically denied any collateral "promises"
when he subsequently completed the written plea petition.
Moreover, "we have never held the district courts to a
formula of magic words" in meeting the requirements of Rule
11."
United States v. Medina-Silverio, 1994 WL 364135 at *3
_____________
_______________
(1st Cir. July 19, 1994).
-6-

11.

Fed. R. Crim. P. 11; see Medina-Silverio, 1994 WL 364135

___ _______________

(detailing core elements

required of a rule 11

collecting

Appellant

cases).

understanding

of

penalty

might

that

collateral
after

the court's
be

full

a written

He also

reiterated

authority, the

imposed, and

promises, in

the hearing.

then

colloquy and

the

omitted

maximum

absence

plea petition

his

of

any

completed

any mention

of

the

promise he now alleges when he appeared for sentencing.

"A

defendant

representations

in

is
court

additional promises."
at

ordinarily

bound

disclaiming

by

the

his

or

her

existence

of

Bemis v. United States, 1994 WL 376057

_____
_____________

*2 (1st Cir. July 22, 1994) (citations omitted); see also

________

Hernandez-Hernandez v. United States,

___________________
_____________

904 F.2d 758, 762 (1st

Cir. 1990) (sworn Rule 11 statements are presumptively true);

United States v.
_____________
defendant

will

Butt, 731 F.2d

____
not be

heard

statements in a subsequent
valid

reason for

75, 80 (1st
to

controvert

Cir. 1984)
his

Rule

2255 motion unless he

departing from

(a
11

offers a

the apparent truth

of his

earlier statements).
In

the absence

of unusual

facts that

might lend

plausibility to appellant's belated

sworn

testimony,

conclusory
Compare
_______
where

the court

allegation

Bemis, slip
_____
appellant

did

without

op. at

contradiction of his own

not err
an

rejecting his

evidentiary

7-8 (in

offered

in

hearing.

unusual circumstances,

affidavits

from

two

former

-7-

prosecutors,

and

pointed

to

specific

supporting

facts,

evidentiary hearing should be held); Hernandez-Hernandez, 904

_________ _________
F.2d

at 762-63

(evidentiary

petitioner supported his

specific factual
corroborating

court's conclusion,
no support
that but

well as

be held

where

affidavit containing

the affidavits

Likewise, we see

after a thorough review,

in the record for

of five

no error in the
that there was

appellant's further allegation

for the alleged misrepresentation he would not have

pled guilty.
(in

claim with an

detail as

witnesses).

hearing should

See Hill v. Lockhart, 474 U.S. 52, 59-60 (1985)

___ ____
________

order to show "prejudice" from alleged counsel errors, a

defendant must

show that

that

not have pled

he would

there is a

reasonable probability

guilty but would

have gone to

trial).
Third, appellant
ineffective
because

assistance

counsel did

sessions,

"utterly

not

argued that his

after

the

attend the

failed

to

counsel rendered

change

of plea

subsequent

assist

hearing

debriefing

appellant"

at

the

sentencing hearing, and did not rebut an alleged governmental

representation that appellant's cooperation had been minimal.

Again, however, the record

contradicts appellant's

factual assertions.

At the sentencing hearing counsel made a

detailed

to

objection

appellant's

"substantial

the

presentence

report

cooperation" with

based

on

the government.

-8-

The

government

cooperation,
the court

neither

denied

but agreed with

Further,

minimized

appellant's

counsel's representations, and

was thus persuaded to

into consideration.

nor

take appellant's assistance

the court invited appellant to

speak

on his own behalf, but appellant indicated that he was

content with his counsel's representations.

The
hearings,

concluded

represented,
absence

and

de
__

had

no

While

claim of

is here,

(observing

the

judge's

we necessarily

performance.
suggesting

Id.
___
error in

first-hand
at 225.

counsel's

assistance

are
of

Strickland v.
__________

place relatively

See McGill, 11 F.3d at

___ ______

in

courts' approaches
Further

observations
Appellant

the court's

competently

When the mix is fact-

review of ineffective assistance claims).

is due

both

legal questions

law and fact.

differences

at

due to

ineffective

reliance on the fact-finder.

n.2

was

prejudice

U.S. 668, 698 (1984).

as it

presided

appellant

is a mixed question of

dominated,

226

that

who

debriefings.

novo,
____

Washington, 466
__________

greater

judge,

suffered

from the

reviewed
counsel

district

deference

of

counsel's

points to

conclusion

to

nothing

and we

see no

error.
Lastly

appellant asserts

two

challenges

to

the

statutory authority

for his sentence.

Neither argument was

properly

for

we

preserved

contentions appear

appeal,

foreclosed by

-9-

but
our

note

that

decisions in

both

related

appeals

brought

by appellant's

Palacios v. United States,

________
_____________
following the

Supreme Court's decision

498

U.S.

contention

the

district

of

supervised

that
term

395

committed during

the "hiatus

versions

federal

of the

circumstances
appellant's

the

otherwise

violated by

change of

plea hearing that

supervised release.

the

we

court erred
release

rejected
in

law.

We
from

this

crime,

found,

those

in

attending

codefendant's rights

it would not

two different

also

court's statement

v.
the

imposing

for

period" between

drug

Cir. 1991),

in Gozlon-Peretz
_____________

(1991),

indistinguishable
plea, that

In Padilla________

932 F.2d 31, 33 (1st

United States,
______________

mandatory

codefendants.

were

at the

impose a

Padilla-Palacios, 932 F.2d

________________

not
joint

term of

at 35.

In

United States v. Agressot-Coas, Dkt. no. 89-1187, slip op. at

_____________
_____________
9

n.

10 (1st

statutory

Cir.

challenge,

penalties in the

May 23,
that

1990),
the

Anti-Drug Abuse

we rejected
increased

Act of 1986,

960(b), did not apply to this crime.

imprisonment
21 U.S.C.

Since the ADAA

provision was enacted seven months before

the other

penalty

the date that this

crime
of a

was committed, and there was no expression by Congress

contrary intent, we

concluded that the

district court

had correctly applied the increased penalty provision in this

case.
general

Accord Gozlon-Peretz, 498

______ _____________

U.S. at 404

rule that statute takes effect

(applying the

on date of enactment

-10-

in

absence

of a

clear

contrary direction

by

Congress to

interpretation of other provisions of ADAA).

In

sum,

entitlement to an

appellant

has demonstrated

evidentiary hearing on,

neither

his

nor error in

the

denial of, the motion for relief under 28 U.S.C.

Affirmed.
________

2255.

-11-