USCA1 Opinion
January 2, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1459
FRANCISCO GARCIA AROMI,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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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
Cyr, Boudin and Lynch,
Circuit Judges.
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Francisco Garcia Aromi on brief pro se.
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Guillermo Gil, United States Attorney, Miguel A. Pereira,
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Assistant United States Attorney, and Jose A. Quiles Espinosa, Senior
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Litigation Counsel, on brief for appellee.
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Per Curiam. Pro se petitioner Francisco Garcia Aromi
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(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. 3E1.1(a), (2) that he is entitled to a downward
adjustment for being a minor participant under U.S.S.G.
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 3E1.1(a) and Equal Protection
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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.
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claims for the reasons stated in the district court's
opinion. And while we agree that Garcia's 3B1.2(b) claim
was meritless, we note that it also was not cognizable in
this 2255 proceeding. See Knight v. Miller, 37 F.3d 769,
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771-74 (1st Cir. 1994). We also agree that Garcia's claims
that defense counsel rendered ineffective assistance by
failing to seek a 3B1.2(b) adjustment and by failing to
explain the matters noted in note 1, supra, also were
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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,
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1187 n. 3 (1st Cir. 1992). Accordingly, the judgment of the
district court is affirmed.
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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.
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95-1226, slip op. at 36 (1st Cir. Dec. 6, 1995)(citation
omitted).
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