Holland v. Dwyer, Collora

Opinion

USCA1 Opinion

March 29, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________


No. 95-1632


SCOTT W. HOLLAND,



                                Plaintiff, Appellant,



                                          v.



                          DWYER, COLLORA & GERTNER, ET AL.,



                                Defendants, Appellees.

                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. D. Brock Hornby,* U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                            Selya and Cyr, Circuit Judges.
                                           ______________



                                 ____________________



            Scott W. Holland on brief pro se.
            ________________

            David J. Hatem, Lynn A. LaBanca and Burns  & Levinson on brief for
            ______________  _______________     _________________

        appellees.


____________________


____________________


______________________________

        *Of the District of Maine, sitting by designation.


Per Curiam.   We  affirm the judgment  substantially for
                 __________



the reasons recited  by the  district court  in its  decision



            dated  May 1, 1995,  adding only the  following.  Plaintiff's



            guilt with respect  to his underlying drug  conviction is not



            in doubt.   Accordingly, a prerequisite  to any recovery  for



            legal  malpractice  is  proof that  counsel  committed "clear



            negligence  whose  causal  connection to  the  conviction  is



            clear," Glenn v.  Aiken, 409 Mass. 699, 705 (1991)--not proof
                    _____     _____



            of  negligence  having  a  "casual"  connection  thereto,  as



            plaintiff  suggests.    The  tactical decision  to  move  for



            dismissal prior  to trial,  as the district  court explained,



            fails to satisfy this standard.  In turn, the contention that



            defendants were  obligated to  prepare for and/or  to conduct



            the trial  is belied by plaintiff's  insistence on proceeding



            pro se--to  the point  of spurning  all offers  of assistance



            from standby  counsel during the  trial itself.   See,  e.g.,
                                                              ___   ____



            United  States v. Nivica, 887 F.2d 1110, 1121 (1st Cir. 1989)
            ______________    ______



            (right  to  counsel  and  right  to  self-representation  are



            "mutually exclusive").   Plaintiff's argument that  the Glenn
                                                                    _____



            standard  is  inapplicable to  pretrial  proceedings likewise



            proves unavailing.  See, e.g., Peeler v. Luce, 909 S.W.2d 494
                                ___  ____  ______    ____



            (Tex. 1995). 



                 Affirmed.  See Loc. R. 27.1.
                 ____________________________


-2-