Espinosa-Sanchez v. United States

Opinion

USCA1 Opinion

March 18, 1996          [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________


No. 95-1671



                              ORLANDO ESPINOSA-SANCHEZ,



                                Petitioner, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,



                                Respondent, Appellee.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                          Boudin and Stahl, Circuit Judges.
                                            ______________



                                 ____________________



            Orlando Espinosa-Sanchez on brief pro se.
            ________________________

            Guillermo  Gil, United  States Attorney,  Rosa E.  Rodriguez-Velez
            ______________                            ________________________

        and Nelson Perez-Sosa, Assistant United States Attorneys, on brief for
            _________________

        appellee.


____________________


____________________



Per Curiam.   After carefully reviewing the  record
                      __________



            and  the  parties' briefs,  we  affirm  the  judgment of  the



            district  court for  essentially  the reasons  stated in  its



            Opinion and Order.  We add the following comments.



                      1.  The district  court was not required to  hold a



            hearing  on  appellant's  claim that  his  attorney  provided



            ineffective assistance by failing to call as witnesses two of



            appellant's codefendants.  Conspicuously absent  from both of



            the affidavits  of these  codefendants is any  statement that



            either  codefendant   would  have  testified   on  behalf  of



            appellant.   Also missing are averments  that appellant never



            knew  about the cocaine on board the SHEME and that appellant



            never  had  been  told  about  the  drugs.    Indeed, neither



            affidavit is  inconsistent with the government's  position at



            trial that  appellant was part  of the conspiracy  to possess



            with the intent to distribute the cocaine.  Thus, even taking



            the  rest of the allegations  in the affidavits  as true, the



            conclusions  appellant draws  from these facts  are basically



            "self-interested  characterizations."   See United  States v.
                                                    ___ ______________



            McGill, 11 F.3d 223, 225 (1st Cir. 1993) (in deciding whether
            ______



            to  hold   a  hearing,  the   district  court  must   take  a



            petitioner's factual  averments as  true but need  not credit



            "conclusory  allegations,  self-interested  characterizations



            [or] discredited inventions").


-2-



Finally,  the case  upon which  appellant primarily



            relies, United  States  v. Yizar,  956  F.2d 230  (11th  Cir.
                    ______________     _____



            1992), is not to the contrary.  In Yizar, there was no doubt,
                                               _____



            unlike  here, that  the  codefendant actually  had said  that



            defendant  was innocent.    Here, in  contrast,  there is  no



            independent corroboration that Estupinan  or Passos-Paternina



            possessed exculpatory  evidence or that appellant  even named



            them as  potential witnesses.   Moreover, the  information in



            their  affidavits hardly  amounts  to a  direct statement  of



            appellant's innocence.



                      2.  Appellant's  claim that his  attorney prevented



            him from taking the stand is supported by only his allegation



            that  his attorney  led  him to  believe  that he  could  not



            testify.  This  is insufficent, without more,  to require the



            district court to hold an evidentiary hearing.   Siciliano v.
                                                             _________



            Vose,  834 F.2d  29, 31  (1st Cir.  1987) (an  affidavit that
            ____



            states  only  that  counsel  refused to  allow  defendant  to



            testify  on  his  own  behalf is  insufficient  to  establish



            defendant's  entitlement to  a hearing  on his  habeas corpus



            petition).  See also Underwood v. Clark, 939 F.2d 473, 475-76
                        ___ ____ _________    _____



            (7th Cir.  1991) (a "barebones assertion"  that a defendant's



            attorney would not let him testify is "too facile a tactic to



            be  allowed  to  succeed";  greater  particularity  and  some



            substantiation are necessary).


-3-



Again,  the  cases upon  which  appellant primarily



            relies  do not support his  position.  In  one, United States
                                                            _____________



            v.Walker, 772  F.2d 1172 (5th  Cir. 1985) (a  direct appeal),
              ______



            the defendant had told his attorney that he wished to testify



            and the  attorney had  filed a motion  to reopen the  case to



            allow defendant to take the stand.  The court determined that



            the  trial court  had abused  its discretion  in  denying the



            motion.  Id. at 1176, 1185.  In the other case, United States
                     ___                                    _____________



            v.  Butts,  630  F.Supp. 1145  (D.  Me.  1986)  (a new  trial
                _____



            motion), there  was independent evidence  -- courtroom scenes



            and  counsel's testimony  -- that defendant  consistently had



            demanded to  testify on  his own  behalf.  Id.  at 1146.   As
                                                       ___



            noted  above,  there  is   no  independent  corroboration  of



            appellant's  allegation that  his attorney  told him  that he



            could not testify.



                      3.   The remainder  of appellant's claims  were not



            raised below and therefore will  not be addressed on  appeal.



            See Knight v.  United States, 37 F.3d 769,  772 n.2 (1st Cir.
            ___ ______     _____________



            1994).



                      The judgment of the district court is affirmed.  
                                                            ________


-4-