Donlon v. United States

• Court: Court of Appeals for the First Circuit
• Decided: October 8, 1992
• Docket: 92-1276
• Status: Published

Opinion

USCA1 Opinion

        October 8, 1992         [NOT FOR PUBLICATION]

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No. 92-1276 

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  DANIEL J. DONLON,

                                Plaintiff, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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            Daniel J. Donlon on brief pro se.
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            Jeffrey R.  Howard, United  States Attorney, and  Peter E.  Papps,
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        First Assistant United States Attorney, on brief for appellee.

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Per  Curiam.      We  affirm the  judgment  of  the
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            district  court denying appellant's  petition to  vacate, set

            aside  or correct  sentence under  28 U.S.C.    2255  for the

            reasons stated in  the district court's  carefully considered

            order of February 6, 1992.  We add only the following. 

                      The  Constitution does  not guarantee  petitioner a

            winning defense,  only the assistance of  counsel that, under

            the circumstances  present  at the  time of  trial, does  not

            "f[a]ll  below  an  objective  standard  of  reasonableness."

            Strickland v.  Washington, 466  U.S. 668, 698  (1984); United
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            States v.  Natanel,  938  F.2d  302,  309  (1st  Cir.  1991).
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            "Failure  to make  the required  showing of  either deficient

            performance    or    sufficient    prejudice    defeats    an

            ineffectiveness [of counsel] claim."  Strickland, 466 U.S. at
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            700.   Petitioner bears the burden to show the entitlement to

            an evidentiary  hearing, Barrett  v. United States,  965 F.2d
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            1184, 1193 (1st Cir.  1992), and must affirmatively establish

            both  the  "performance" and  "prejudice"  components of  the

            Strickland analysis.  Strickland, 466 U.S. at 687. 
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                      We find, in concert  with the district court, that,

            under   the  "highly   deferential"   scrutiny  ordained   by

            Strickland,  id.  at  689,  petitioner's proffers  failed  to
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            "overcome the presumption that . . . the challenged action[s]

            'might  be considered  sound  trial strategy.'"   Id.  at 698
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            (quoting  Michel  v. Louisiana,  350  U.S.  91, 101  (1955)).
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Since  appellant does  not  contend that  his lawyer's  trial

            conduct resulted  from lack  of a thorough  investigation, or

            neglect or ignorance, tactical decisions, such as not calling

            particular defense witnesses  in the circumstances  presented

            here, are  among the "plausible options"  that are "virtually

            unchallengeable."    Barrett,  965   F.2d  at  1193  (quoting
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            Strickland,  466  U.S. at  690).   As  such, they  "cannot be
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            second-guessed on collateral review."  Id. at  1194 n.19; see
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            also Natanel, 938 F.2d at 310.
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                      Regarding the  claim that his  attorney refused  to

            allow him  to testify  at his trial,  petitioner's affidavit,

            read  in light of the record,  suggests no more than that the

            defendant, upon  advice of counsel, made the  decision not to

            testify.   In Siciliano v.  Vose, 834  F.2d 29, 31  (1st Cir.
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            1987),  we  found   defendant's conclusory  collateral relief

            claims that his attorney prevented him from testifying at his

            trial not  supported by  specific facts.   Here, petitioner's

            affidavit that  his attorney "insisted" that  he not testify,

            and that he  himself "insisted"  that he  wanted to  testify,

            merely  states   conclusions  which  are  totally lacking  in

            detailed factual  support.  United  States v. Butt,  731 F.2d
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            75, 77  (1st Cir. 1984).   So read, petitioner has  failed to

            demonstrate that  his  constitutional right  to  testify  was

            abridged.   Siciliano, 834 F.2d at 31.  Nothing in the record
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            "provide[s] any reasons for concluding that any such specific

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factual allegations would be credible."   Id. at 31 (emphasis
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            added).    Nor  does  petitioner otherwise  show,  much  less

            suggest, that  defense counsel overlooked  a viable  defense.

            See  United States  v. Porter,  924 F.2d  395, 397  (1st Cir.
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            1991).   Consequently, the decision  by the trial  judge, who

            was thoroughly familiar with all the proceedings in the case,

            not  to  hold an  evidentiary  hearing  was entirely  proper.

            Ouellette  v. United States,  862 F.2d 371,  377-78 (1st Cir.
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            1988). 

                      The  district court correctly concluded that "there

            is not  a reasonable  probability that the  jury's conclusion

            would have  been different  if the evidence  which petitioner

            now says  [his] attorney  ...  should have  offered had  been

            presented  to  it,"  and that,  accordingly,  petitioner  was

            entitled to no  relief.   Rule 4(b), Rules  governing    2255

            proceedings  ("If it  plainly appears  from the  face  of the

            motion and any annexed exhibits and the  prior proceedings in

            the  case that the  movant is not  entitled to relief  in the

            district court, the judge shall make an order for its summary

            dismissal.").

                     The judgment of the district court is affirmed.
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