USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-2168

TERRENCE BROOKER,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________
Cyr, Senior Circuit Judge,
____________________
and Lynch, Circuit Judge.
_____________

____________________

Terrence Terain Brooker on brief pro se.

_______________________
Sheldon Whitehouse, United
___________________

States Attorney,

Margaret E. Cur
________________

and Edwin J. Gale, Assistant

______________

United States Attorneys,

on brief

appellee.

____________________

April 29, 1997

____________________

Per Curiam.
___________

Pro

se

appellant

Terrence Brooker

appeals

from the denial of his motion to vacate his sentence

under 28 U.S.C.

In

his

constitutional

assistance

failed

2255.

We affirm.

motion,

rights to

of counsel

Brooker

due process

had been

sentencing

possess crack cocaine.

failed to prove that

involved

his

the effective

his attorney

to distribute

and

to

According to Brooker, the government

the drug crime to which

for which he

However,

that

or on direct appeal, his

conspiring

"crack cocaine,"

"cocaine base"

sentenced.

for

and to

violated when

to challenge, at sentencing

enhanced

alleged

the

rather

than some

would have been

plea

hearing

he pled guilty

other form

of

more leniently

transcript

shows

unambiguously that, under oath, Brooker knowingly admitted to

having

agreed

to

conversations with a

distribute

crack

cocaine

government informant.

in

taped

"There can be no

question that admissions to the court by a defendant during a

guilty plea colloquy

sentencing

stage."

can be relied upon by

United States v. James, 78 F.3d 851, 856

_____________
_____

(3d Cir.), cert. denied, 117 S. Ct. 128

____________

record

conclusively

unverified

justified

evidentiary

1396,

2255

in

refutes

motion,

denying

hearing.

the court at the

the

the allegations

the district

motion

See United States

___ _____________

1413 (1st Cir. 1995),

(1996).

Because the

in

court

without

Brooker's

was

holding

fully

an

v. LaBonte, 70 F.3d
_______

petition for cert. granted, 116

__________________________

-2-

S. Ct. 2545 (1996) (a

2255 motion may

be dismissed without

an evidentiary hearing if key factual averments in the motion

are

contradicted "by

claims

must "rest

presented

under

established

on

oath,

facts of

a foundation

either

in a

record"; habeas

of factual

verified

allegations

petition

or

supporting affidavits").

Moreover, the district court had no obligation to permit

Brooker to

to

file a "traverse" to

his motion, as

government

Brooker claims.

This is

so because the

did not ask for dismissal of the

delayed or

States,
______

the government's opposition

successive petition.

965 F.2d 1184, 1187 n.3

2255 motion as

See Barrett
___ _______

v. United
______

(1st Cir. 1992) (the

2255

rules do not contemplate the filing of a traverse, unless the

government's response asks for

dismissal of the motion under

Rule 9 relative to delayed or successive motions).

On

ineffective

appeal,

Brooker

assistance of

affidavit which

Ocasio-Rivera,

991 F.2d

made

new

counsel, proffering

was never

We decline to consider

has

presented to the

his new claims.

1,

3 (1st

claims

of

a supporting

district court.

See United States v.

___ _____________

Cir.

1993) ("It

is

_____________

bedrock

principle

in

squarely

raised

in the

preserved for appeal.

the

criminal

this

circuit

that

district court

if

issues

must

they are

be

to be

That principle applies unreservedly in

sentencing

context.").

-3-

Brooker

has

not

described any exceptional circumstances that

different outcome.

Affirmed.
_________

would warrant a

-4-