USCA1 Opinion
March 9, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1560
No. 92-2245
MILTON NELSON-RODRIGUEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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ERRATA SHEET
November 18, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1560
No. 92-2245
MILTON NELSON-RODRIGUEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Maria H. Sandoval for petitioner.
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Lena D. Mitchell, Criminal Division, Narcotic and Dangerous Drug
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Section, Department of Justice, with whom Robert S. Mueller, III,
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Assistant Attorney General, Mary Lee Warren, Chief, Criminal Division,
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Narcotic and Dangerous Drug Section, Department of Justice, and
Daniel F. Lopez-Romo, United States Attorney, were on brief for the
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United States.
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Per Curiam. Appellant Milton Nelson-Rodriguez
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appeals from the judgment of the United States District Court
for the District of Puerto Rico dismissing his motion for
post-conviction relief filed pursuant to 28 U.S.C. 2255.
Appellant had earlier been sentenced to fifteen years
imprisonment after pleading guilty to a violation of 21
U.S.C. 848 under a plea agreement dated May 27, 1986.
Proceeding pro se, appellant sought to have his
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sentence vacated, alleging the ineffective assistance of
counsel. A magistrate issued a report and recommendation on
March 14, 1991, recommending the dismissal of appellant's
section 2255 motion. The magistrate's report and recommen-
dation contained an express warning that appellant had ten
days within which to file any objections thereto, and that
failure to file timely objections would waive his right to
obtain review. See Dist. Ct. Puerto Rico Local Rule 510.2;
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United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.
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1986).1
Appellant secured an attorney who successfully
moved for an extension of the ten-day deadline. The district
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1. We do not consider appellant's contention that Local
Rule 510.2 is unconstitutional despite the Supreme Court's
holding to the contrary in Thomas v. Arn, 474 U.S. 140 (1985)
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because appellant merely asserts, without any developed
argument, that it is "inconceivable" that such a rule could
be constitutional. See Brown v. Trustees of Boston Univ.,
___ _____ _________________________
891 F.2d 337, 352 (1st Cir. 1989) (issues raised but not
supported by argument in appellant's brief are deemed
abandoned).
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court granted two more extensions, making June 24, 1991, the
final deadline for filing of objections. However,
appellant's objections were not filed in the district court
until November 19, 1991, more than four months after the
expiration of the final extension.
The district court denied appellant's motion to
file his objections out of time, explaining that the court
had already granted numerous extensions and rejecting
counsel's various excuses for failing to make any appearance
or motion before the court between June 24 and November 19.
We find no abuse of discretion in the district
court's denial of appellant's motion to file his objections
to the magistrate's report and recommendation after the final
deadline expired. While procedural defaults may be excused
"in the interests of justice," Thomas v. Arn, 474 U.S. 140,
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155 (1985), the district court properly concluded that
appellant's counsel offered no acceptable reason for the
four-month delay. We have considered appellant's contentions
in light of the record, and can see no miscarriage of
justice. Appellant does not claim he was innocent; he was
fully instructed as to the consequences of pleading guilty;
he received the very sentence which the prosecution agreed to
recommend to the court; and while appellant now insists that
had his attorney rendered accurate advice he would not have
agreed to so high a sentence, the sentence awarded was not so
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obviously out of line, given appellant's very substantial
criminal activity, as to suggest anything approaching a
miscarriage of justice.
Affirmed.
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