USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 96-2349



                    LUIS A. CORTES-ALEJANDRO,



                      Petitioner, Appellant,



                                v.



      KATHERINE HAWK, DIRECTOR OF FEDERAL BUREAU OF PRISONS,



                      Respondent, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



          [Hon. Jose Antonio Fuste, U.S. District Judge]







                              Before



                     Torruella, Chief Judge,

               Selya and Boudin, Circuit Judges.

                                

                                





     Luis A. Cortes-Alejandro pro se.

     Guillermo Gil, United States Attorney, Jose A. Quiles

Espinosa, Senior Litigation Counsel, and Jacabed Rodriguez-Coss,

Assistant United States Attorney.











December 30, 1998







                                

                                





            Per Curiam.  Petitioner appeals from a denial of a

    petition for collateral relief from his conviction under 28

    U.S.C.  2255, and the denial of a motion for a new trial.  The

    petition was filed in the district court prior to the effective

    date of the Antiterrorism and Effective Death Penalty Act of

    1996 ("AEDPA"), so our review is under the habeas statutes

    unaltered by the AEDPA.  See Martin v. Bissonette, 118 F.3d

    871, 873 (1st Cir. 1997).  

              Below, petitioner argued that the government had

    violated its discovery obligations by withholding impeachment

    information about two government witnesses and that "new"

    impeachment evidence, acquired after petitioner's conviction,

    warranted a new trial.  The district court rejected the

    arguments, finding that, (1) the government had disclosed to

    the defense all of the impeachment evidence in its possession

    at the time of trial and, even if it had not, the allegedly

    undisclosed evidence was not "material" to the outcome of the

    trial; and (2) the "new" impeachment evidence acquired after

    the trial was of marginal value and would not likely result in

    an acquittal.

             Having carefully examined the judgement in light of

  the record, the government's brief, and petitioner's filings

 below,  we affirm.  There is no clear error in the court's

  factual findings and, upon de novo review, we agree that the

  allegedly undisclosed impeachment evidence was not "material"

  to the outcome of the trial.  See United States v. Cunan, 152

  F.3d 29, 34 (1st Cir. 1998) (defining "material" evidence in

  this context).  The "new" impeachment evidence also was of

  dubious materiality, and there was no "manifest abuse of

  discretion" in the district court's denial of the motion for a

  new trial.  United States v. Montilla-Rivera, 115 F.3d 1060,

  1064 (1st Cir. 1997).

      During the pendency of this appeal, petitioner filed

  a confused "motion to remand," which attacks, for the first

  time on appeal, the legality of his sentence.  Construed as (1)

  an attempt to insinuate wholly new issues and arguments on

  appeal, the motion is denied.  Alternatively, (2) construed as the functional equivalent of a motion for permission to file a

  second or successive  2255 petition, permission is denied. 

  See Pratt v. United States, 129 F.3d 54 (1st Cir. 1997)

  (holding that when a prisoner's first and second habeas

  petitions straddle the AEDPA's effective date, permission to

  proceed with the second petition must be sought in the court of

  appeals), cert. denied, 118 S. Ct. 1807 (1998).  There are no

  grounds for certification shown in this motion.  See 28 U.S.C.

   2255 (requiring for certification a "new rule of

  constitutional law, made retroactive to cases on collateral

  review by the Supreme Court, that was previously unavailable," 

  or "newly discovered evidence" which might establish that

  petitioner is not guilty of the offense of conviction). 

  Lastly, (3) construed as a motion arguing for retroactive

  revision of the sentence due to an allegedly applicable change

  in the sentencing guidelines   while we entertain very grave

  doubts about the merits of the argument   petitioner is advised

  that permission from this court is not required for the filing

  of such a motion.  See 18 U.S.C.  3582(c).

      The judgement is affirmed.  The "motion to remand,"

  alternatively construed as an application for permission to

  file a successive petition, is denied.