Francisco Garcia Aromi, Petitioner, Appellant, v. United States of America, Respondent, Appellee, 73 F.3d 355 (1st Cir. 1996)

Annotate this Case
US Court of Appeals for the First Circuit - 73 F.3d 355 (1st Cir. 1996)

Jan. 2, 1996


Francisco Garcia Aromi on brief pro se.

Guillermo Gil, United States Attorney, Miguel A. Pereira, Assistant United States Attorney, and Jose A. Quiles Espinosa, Senior Litigation Counsel, on brief for appellee.

Before CYR, BOUDIN and LYNCH, Circuit Judges.

PER CURIAM.


Pro se petitioner Francisco Garcia Aromi (Garcia) was convicted after pleading guilty to a two count indictment that charged him with robbing the San Sebastian branch of the Banco Popular de Puerto Rico and using and carrying firearms in connection with said robbery, all in violation of 18 U.S.C. §§ 2, 2113(a), (d), (e), and 924(c) (1). He now appeals a district court order that denied his motion to vacate his sentence under 28 U.S.C. § 2255. Garcia's motion and supplemental filings alleged four claims: (1) that he is entitled to a downward adjustment for acceptance of responsibility under a 1992 amendment to U.S.S.G. Sec. 3E1.1(a), (2) that he is entitled to a downward adjustment for being a minor participant under U.S.S.G. Sec. 3B1.2(b), (3) that his sentence violates the Fifth Amendment's Equal Protection Clause, and (4) that defense counsel rendered ineffective assistance by failing to appeal Garcia's sentence, failing to seek the minor participant adjustment, and failing to explain various matters to Garcia.1 

We have thoroughly reviewed the record and the parties' briefs on appeal. We conclude that the district court properly denied Garcia's Sec. 3E1.1(a) and Equal Protection claims for the reasons stated in the district court's opinion. And while we agree that Garcia's Sec. 3B1.2(b) claim was meritless, we note that it also was not cognizable in this Sec. 2255 proceeding. See Knight v. Miller, 37 F.3d 769, 771-74 (1st Cir. 1994). We also agree that Garcia's claims that defense counsel rendered ineffective assistance by failing to seek a Sec. 3B1.2(b) adjustment and by failing to explain the matters noted in note 1, supra, also were properly denied for the reasons stated in the district court's opinion.2  Finally, Garcia has waived his claim that counsel rendered ineffective assistance by failing to file a notice of appeal because he has not addressed it in his opening brief. Cf. Barrett v. United States 965 F.2d 1184, 1187 n. 3 (1st Cir. 1992). Accordingly, the judgment of the district court is affirmed.

 1

Garcia alleged that defense counsel failed to explain the nature of the offense, the fact that Garcia could be held responsible for his codefendants' conduct, the uses of the presentence report, and the consequences of his guilty plea

 2

Moreover, as Garcia's claim that defense counsel rendered ineffective assistance by failing to explain the various matters identified above was based only on his unsworn allegations, the claim was inadequate on its face. "A habeas application must rest on a foundation of factual allegations presented under oath, either in a verified petition or supporting affidavits. .... Facts alluded to in an unsworn memorandum will not suffice." United States v. Labonte, No. 95-1226, slip op. at 36 (1st Cir. Dec. 6, 1995) (citation omitted)