USCA1 Opinion
May 16, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1411
UNITED STATES,
Appellee,
v.
MARIA LUCIA RAZO-GRANADO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya, Cyr and Lynch,
Circuit Judges.
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Maria Lucia Razo-Granado on brief pro se.
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Guillermo Gil, United States Attorney, and Joseph J. Frattallone,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Appellant Maria Razo-Granado was convicted
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of drug offenses arising out of a failed attempt to smuggle
cocaine into the United States. She did not appeal her
conviction or sentence and is presently serving a 78-month
prison term. Appellant appeals from a district court order
that summarily dismissed her 28 U.S.C. 2255 motion without
prejudice. We affirm the dismissal, but we modify it to be
with prejudice.
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Appellant's 2255 motion alleged three claims: (1) that
customs officers were "ineffective" and "ignorant" because
initial field tests suggested that the controlled substance
appellant was carrying was heroin, when later tests
determined that it was cocaine; (2) that appellant's Fourth
Amendment rights were violated when she was stopped,
detained, questioned, and subjected to the warrantless search
of her luggage and its contents when she presented herself
for entry at the United States border, (3) that the district
judge erred by sentencing appellant based on the total amount
of cocaine that was recovered, as opposed to a lesser
quantity of pure cocaine. As appellant's first and third
claims do not assert a constitutional or jurisdictional error
or an error that resulted in a complete miscarriage of
justice, they are not cognizable under 2255. See Knight v.
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United States, 37 F.3d 769, 772-74 (1st Cir. 1994).
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Moreover, both claims are patently meritless.1
1
Appellant's Fourth Amendment claim similarly may not be
reviewed on the merits due to appellant's double procedural
default. See Knight, 37 F.3d at 774 ("Normally, failure to
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raise a constitutional issue on direct appeal will bar
raising the issue on collateral attack unless the defendant
can show cause for the failure and actual prejudice.").
Appellant has not alleged any "cause" for her failure to
raise this issue before the trial judge and on direct appeal.
Thus, her Fourth Amendment claim may not now be reviewed
under 2255.2
2
In view of the foregoing, the judgment dismissing
appellant's 2255 motion is affirmed and modified to reflect
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that the dismissal is with prejudice.
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1 The fact that initial field tests suggested that the
1
controlled substance involved in this case was heroin had
absolutely no impact on appellant's trial, conviction, or
sentence. The record further establishes that the district
judge properly relied on the entire weight of the cocaine-
mixture that was recovered from appellant's possessions in
sentencing appellant. See U.S.S.G. 2D1.1(c), n. * (1991).
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2We note that the trial record strongly suggests that this
2
claim is meritless in any event. And, as appellant's
procedural default bars review of her Fourth Amendment claim,
we need not decide whether Stone v. Powell, 428 U.S. 465,
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481-82, 494 (1976)(barring habeas review of Fourth Amendment
exclusionary rule claims under 28 U.S.C. 2254), also
applies to proceedings under 28 U.S.C. 2255.
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