Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.oscar Anibal Tillett, Plaintiff, Appellant, v. United States of America, Defendant, Appellee, 23 F.3d 395 (1st Cir. 1994)

Oscar Anibal Tillett appeals the dismissal of his motion under 28 U.S.C. § 2255. We affirm.

In this case, the magistrate recommended dismissing Tillett's section 2255 petition on the ground that he had not excused a double procedural default-his failure to object at sentencing to a fine imposed on him by the court and his failure to appeal his sentence.¹  Tillett submitted an objection to the magistrate's report alleging ineffective assistance of counsel as cause for his failure to file an appeal. Tillett said that he had asked his attorney to file a direct appeal, that his attorney had promised to do so, and that Tillett later discovered that his attorney had not done so. The district court accepted the magistrate's report, without referring specifically to Tillett's objection.

On appeal, Tillett has not objected to the court's failure to address his ineffective assistance of counsel claim, and he has not presented that claim to us as an appellate ground for relief. Indeed, his initial appellate brief says nothing about ineffective assistance of counsel.²  It is well established that arguments not raised in an initial appellate brief are generally deemed waived. See Playboy Enterprises v. Public Service Commission of Puerto Rico, 906 F.2d 25, 40 (1st Cir.), cert. denied, 498 U.S. 959 (1990).

We see no reason why we should not follow that principle here. On this record, it is abundantly clear that Tillett has long known that he had the right to appeal his sentence and that it was his failure to appeal that barred him from obtaining collateral relief. It is also clear that, before bringing the present appeal, Tillett must have known that ineffective assistance by his attorney was a legally significant factor in determining his right to obtain collateral relief. As already noted, the court told Tillett at sentencing that he had the "right" to appeal his sentence. Tillett knew by the time he filed a previous postconviction motion for relief in 1991 that his attorney had not done so. The dismissal of that motion was grounded on the fact that Tillett had not filed an appeal. Tillett then filed his section 2255 action with the help of a prison paralegal. The form he used stated that failure to allege all grounds for relief could mean that those grounds would be barred from being presented at a later date; it specifically listed "denial of effective assistance of counsel" and "denial of right of appeal" as commonly cited grounds for section 2255 relief. Furthermore, the magistrate's report made clear that Tillett's unexplained failure to appeal his sentence was one reason why collateral relief was not available. Against this backdrop, we need not look beyond the issues Tillett has presented to us on appeal to decide his case. Accordingly, we conclude that Tillett has voluntarily waived any Bonneau claim he may have had. See Bonneau v. United States, 961 F.2d 17, 23 (1st Cir. 1992) (where there was no doubt that appellant was deprived of his right of appeal because of the dereliction of counsel, a section 2255 petitioner had a right to take a direct appeal without first showing that the issues on appeal would be meritorious).

In the interests of judicial economy, therefore, we proceed to evaluate the merits of his section 2255 claims, and affirm the district court because those claims lack merit. The sentencing court's failure to make specific findings of fact in support of its decision to impose a fine provides no basis for granting collateral relief in this circuit. See United States v. Savoie, 917 F.2d 1057, 1064 (1st Cir. 1993). The sentencing transcript also makes clear that the court did consider Tillett's ability to pay a fine. The court acknowledged that a fine of $20,000 per count (for a total of $60,000 on the three counts to which Tillett pled guilty) seemed "somewhat out of line" with the financial statement in the presentence report. But it suggested that other facts given in the report indicated that the financial statement did not accurately reflect Tillett's actual assets.

Contrary to what Tillett suggests, the presentence report did not conclude that he had no ability to pay a fine. Moreover, it contains sufficient evidence to support the court's imposition of a total fine of $60,000. The report stated that Tillett had admitted that he had received $17,225 for heroin sold to a single Drug Enforcement Administration agent in Rhode Island in the nine-month period preceding his arrest. The agent gave an additional $2,500 to one of Tillett's co-defendants, Luis Cepeda, who, the court determined at sentencing, was a runner for Tillett who collected money from heroin purchasers on Tillett's behalf. The presentence report also indicates that, two months before his arrest, Tillett had arranged to sell heroin "that weekend" to the DEA agent for $35,000-$37,500, suggesting that Tillett already had the heroin available, or that he at least had ready access to it. The sale did not go through because the government backed out; it did not want to jeopardize a separate investigation into Tillett's drug trafficking activities in New York.³  The court reasonably could have inferred that Tillett eventually sold that heroin to other parties and that he had received up to $37,500 in illegal drug sale proceeds in the two months immediately preceding his arrest. Thus, the information in the presentence report permitted the court to conclude that in the nine-month period preceding Tillett's arrest he had received up to $57,225 in proceeds from the sale of heroin. As the report says, Tillett also had over $3,000 in his checking and savings accounts, and so we have no doubt that the court did not abuse its discretion in imposing a total fine of $60,000 on Tillett, and in not deferring its payment until after his release from prison.

The district court knew that Tillett was engaged in drug trafficking in both Rhode Island and New York, and the presentence report does not suggest that Tillett's activities were limited to a few, isolated sales of heroin. The court concluded at sentencing that Tillett was the organizer of the drug conspiracy in which he was involved, and that he had recruited others to join that conspiracy. In addition, the presentence report indicated that Tillett had been arrested before on the charge that he had possessed heroin with intent to deliver. Accordingly, the court would have been justified in concluding that the specific sums mentioned in the presentence report, which reflected only several actual or potential sales to a single DEA agent in Rhode Island, did not reflect the total amount of Tillett's illegal income. Furthermore, before his arrest, Tillett had had steady employment with the same employer for 17 years, had net monthly income of $2,240 and monthly expenses of $1,492, leaving him with a net monthly surplus of $748. From this, the court could have inferred that Tillett's income from drug sales was not used for his living expenses (and Tillett suggests as much in his reply brief).

The financial statement in the presentence report showed that Tillett's combined checking and savings accounts contained some $3,136, that his liabilities were some $11,523, so that he had a negative net worth of approximately $8,386. In view of the facts recited above, however, and the fact that Tillett had retained counsel to represent him, the court could reasonably have concluded that the sums in Tillett's bank accounts reflected only his legitimate income and not what his total financial resources were. Under these circumstances, and given the fact that the court imposed a fine at the lower end of the applicable fine range of $12,500-$1,000,000, we think that there was sufficient evidence to support the court's imposition of a fine of $20,000 per count on Tillett.

Affirmed.