USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                                

                 United States Court of Appeals

                     For the First Circuit

                                

                                







No. 97-1690



                        JUAN E. RODRIGUEZ,



                      Petitioner, Appellant,



                                v.



                    UNITED STATES OF AMERICA,



                      Respondent, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Robert E. Keeton, U.S. District Judge]







                              Before



                     Boudin, Stahl and Lynch,

                        Circuit Judges.

                                

                                





     Juan E. Rodriguez on brief pro se.

     Donald K. Stern, United States Attorney, and Theodore B.

Heinrich, Assistant United States Attorney, on brief for appellee.











June 4, 1998







                                



                 Per Curiam.  Petitioner Juan Rodriguez, a resident

    alien from the Dominican Republic, appeals from the denial of

    his petition for habeas relief under 28 U.S.C.  2255.  In

    1995, he pled guilty to a pair of drug offenses and was

    sentenced to a mandatory term of ten years in prison; included

    in the judgment was a recommendation that he be immediately

    deported if such a course was consistent with the Attorney

    General's policies.  The principal claim now advanced is that

    trial counsel rendered ineffective assistance by improperly

    persuading petitioner not to appeal from that conviction,

    thereby precluding appellate review of various sentencing

    issues.  In particular, counsel is alleged to have "assured"

    petitioner that he would be immediately deported and that an

    appeal was thus unnecessary.  The district court dismissed the

    petition without a hearing.  We affirm substantially for the

    reasons enumerated in the court's decision, adding only the

    following comments.

             Contrary to petitioner's suggestion, this is not a

    case of failure on the part of counsel to file a requested

    notice of appeal.  See, e.g., Bonneau v. United States, 961

    F.2d 17 (1st Cir. 1992); United States v. Tajeddini, 945 F.2d

    458, 466-69 (1st Cir. 1991) (per curiam).  No matter how his

    allegations are construed, it is clear that petitioner

    eventually acquiesced in his lawyer's advice--i.e., that he

    agreed to waive his right to appeal.  Instead, the central

    issue is whether such advice was so misplaced as to render that

    waiver invalid.  

             The district court properly dismissed the petition on

    its face.  At sentencing, the court had emphasized that any

    early deportation was subject to the discretion of the Attorney

    General and was far from certain.  The remarks supposedly

    voiced by counsel to his client, just moments later, that

    imminent deportation was assured would have been directly at

    odds with the court's pronouncements.  Indeed, it defies

    credulity that experienced counsel would have made such a

    promise under the circumstances.  See, e.g., United States v.

    McGill, 11 F.3d 223, 226 (1st Cir. 1993) (explaining that

    habeas petition may be dismissed without an evidentiary hearing

    where the key factual averments "contradict the record" or are

    "inherently incredible").  We have considered a more plausible

    scenario never specifically articulated by petitioner--that

    counsel simply predicted that early deportation was likely--and

    have concluded that no Sixth Amendment violation would obtain

    in that situation either.  We also note that petitioner has

    voiced no complaint on appeal regarding the court's refusal to

    hold an evidentiary hearing.

             Petitioner's sentencing challenges are devoid of

    merit in any event.  The record fully supports the court's

    determination that the "safety valve" provision was

    inapplicable due to petitioner's failure to make full

    disclosure.  See 18 U.S.C.  3553(f); U.S.S.G.  5C1.2.  Such

    a finding is reviewed only for clear error, see, e.g., United

    States v. White, 119 F.3d 70, 73 n.6 (1st Cir. 1997); we

    perceive no error of any sort.  Petitioner's remaining claims

    have been waived on appeal and are, in any event, likewise

    lacking in merit.

             Affirmed.