USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 96-1561

JUAN MOISES PEREZ-MENDEZ,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Selya and Stahl, Circuit Judges.
______________

____________________

Juan Moises Perez-Mendez on brief pro se.

________________________
Sheldon Whitehouse,
__________________

United States Attorney,

Margaret E. Curr
_________________

Assistant U.S. Attorney, and James H. Leavey, Assistant U.S. Attorn

_______________
on Appellee's Motion to
Appealability and To

Dismiss For Failure to Obtain

Vacate the

Certificate

Order Requiring Appellee

to File

Brief.

____________________

November 13, 1996

____________________

Per Curiam.
__________

Upon

careful review of petitioner's brief,

the

government's

conclude

that

petitioner's

motion

the

to

district

motion.

For

magistrate judge's report and

not

dismiss, and

court

the

the

record,

correctly

reasons

stated

denied

in

the

recommendation, we agree

petitioner

did

sustain

his

claim

assistance

of counsel during sentencing.

of

we

that

ineffective

We add only these

comments.

1.

The

dismissed

government asserts that

because

certificate of

habeas

appealability as

amendments,

Penalty Act of 1996,

24, 1996).

of

petitioner

the

has

failed

required

Antiterrorism and

to

to

obtain

under the

recent

Effective

Pub. L. 104-132, 110 Stat.

There is some uncertainty

those amendments

this appeal should be

Death

1214 (April

about the application

this proceeding,

but

we need

not

resolve it here.

under

any

The result of this appeal would be the same

analysis:

appealability were

that

the

merits.

we

would

deny

one required, and we

district court

Hence, we

order

certificate

of

also have concluded

should be

do not address

See United States v. Connell,

___ ______________
_______

affirmed

on the

the government's motion.

6 F.3d 27,

29 n.3 (1st

Cir.

1993) (forgoing resolution of a jurisdictional question where

an uncomplicated

appeal is easily

party challenging jurisdiction).

-2-

resolved in favor

of the

2.

For

the

first

time

in this

appeal,

petitioner

contends that his attorney provided ineffective assistance by

failing

to appeal

from the

sentencing court's

decision to

accept certain facts stated in the presentence report.

issue was not mentioned in petitioner's

not

ruled

consider it.

on by

the

See
___

1010, 1013 (1st Cir.

district court,

United States
_____________

That

2255 motion and was

and so

we

will not

v. La Guardia, 902
___________

1990) (issues not raised below

F.2d

will be

considered on appeal only in exceptional cases).

3.

Similarly,

we do

not

attached to petitioner's brief,

consider the

new affidavit

because it was not presented

to the district court.

For

the foregoing

government's motion

reasons,

we need

to dismiss this

appeal and to

briefing order.

Affirmed.
________

not consider

See 1st Cir. Loc. R. 27.1.

___

the

vacate a

-3-