Lopez Polanco v. United States

• Court: Court of Appeals for the First Circuit
• Decided: March 16, 1993
• Docket: 92-2054
• Status: Published

Opinion

USCA1 Opinion

March 15, 1993
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-2054 

                                 ANDRE LOPEZ POLANCO,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Andre Lopez Polanco on brief pro se.
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            Richard S. Cohen,  United States Attorney, Margaret D.  McGaughey,
            ________________                           ______________________
        Assistant United States  Attorney, and Thimi R. Mina, Assistant United
                                               _____________
        States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.   Andre Lopez Polanco  was convicted of
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sentence.   He  now  appeals  the  district  court's  summary
            and  abetting  the  possession   with  intent  to  distribute
            conspiring to distribute cocaine and of possessing and aiding
            conspiring to  possess  with  intent  to  distribute  and  of

dismissal of his motion.  We affirm.
            Polanco brought a motion under 28 U.S.C.   2255 to vacate his
            cocaine.   After  we  confirmed  his  conviction  on  appeal,

it did not tell the jury what its final decision was; (3) the
            following grounds for  relief:  (1)  he received  ineffective

telephone conversation; (2) the district court told the  jury
            challenge the court's admission of testimony about a  certain
            assistance of counsel because his appellate attorney did  not

final ruling after all  the evidence had been  presented, but
            that it would admit  that testimony conditionally and make  a

four-level increase  in his  base offense  level for  being a
                      In his  section 2255  motion,  Polanco alleged  the

testimony of  witnesses hoping  to receive  lesser sentences,

have  distributed  was  calculated  by  adding  together  the
            a  conviction"; (4) the quantity of cocaine he was alleged to

amounts the government's  witnesses stated they  had received
            rendering  such testimony "a form of coercion in order to get

two-level  increase  in  offense  level  for  obstruction  of
            from him, amounts which  could have been fabricated;  (5) the
            leader  and organizer was wrong  because it was  based on the

justice,  which the  court  based on  his  perjury at  trial,
            violated his  "right to  self-defense"; and (6)  the district

            court did not hold an evidentiary hearing.  

                      We   have   stated   that  summary   dismissal   is

            appropriate when a section 2255 petition is inadequate on its

            face, or is conclusively  refuted as to the alleged  facts by

            the files and records of the case.  Barrett v. United States,
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            965  F.2d  1184, 1186  (1st  Cir. 1992).    Summary dismissal

            without an evidentiary hearing is also proper  if the grounds

            for   relief   stated   in   the   motion    are   conclusory

            generalizations    or   assertions    without   "sufficiently

            particular  and supportive  allegations of fact"  showing why

            habeas  relief is warranted.  Id.; see also Bernier v. Moore,
                                          ___  ________________    _____

            441  F.2d 395,  396 (1st  Cir. 1971)  (per curiam);  Aubut v.
                                                                 _____

            Maine,  431 F.2d 688, 689 (1st Cir. 1970).  Because Polanco's
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            motion is inadequate on its face, presenting claims which are

            either refuted as  to alleged facts by the record, conclusory

            or  otherwise  without  merit,  we affirm  the  dismissal  of

            Polanco's petition.  

                      1.  Ineffective Assistance of Counsel
                          _________________________________

                      Polanco alleges that his appellate counsel rendered

            ineffective assistance  by not challenging the  trial court's

            admission of testimony about a certain telephone conversation

            which Polanco  alleges was hearsay.   A claim  of ineffective

            assistance of  counsel is properly  raised in a  section 2255

            motion,  see United States v. Caggiano, 899 F.2d 99, 100 (1st
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Cir.   1990),  but   Polanco's  claim   fails  for   lack  of

            specificity.   Polanco provides  no identifying details about

            the conversation he is  referring to, and does not  say which

            witness testified  about  the  conversation.    Although  the

            transcripts submitted to this court contain testimony about a

            telephone conversation which is probably the one in question,

            other  trial  transcripts were  not  made  available to  this

            court, and so we  cannot know for sure that  the conversation

            in  the transcripts we have is the relevant conversation.  In

            any  event,  Polanco  does   not  explain  how  admission  of

            testimony  about that telephone  conversation prejudiced him,

            and  prejudice  is  not  apparent from  the  record.    Three

            witnesses independently testified  that Polanco had  provided

            them with cocaine, which they distributed, that they had paid

            the proceeds  from their cocaine  sales to Polanco,  and that

            they  had made  out-of-state trips  with Polanco  to  pick up

            cocaine for distribution within the state.  That evidence was

            sufficient to convict him of the drug charges against him.   

We  have said that  it is well  within the district

            court's  discretion to  decline  to hold  a  hearing where  a

            habeas petitioner merely states what counsel's alleged act or

            omission is  without  explaining why  it  constituted  "gross

            impropriety or prejudicial misconduct."  Bernier, 441 F.2d at
                                                     _______

            396.  This is so even  where the petitioner is proceeding pro

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se.  Id.  Because Polanco did not provide any factual details
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            to support  his claim  of ineffective assistance  of counsel,

            and the  record suggests  that no  such facts  exist, summary

            dismissal was appropriate.

                      2.  Remaining Claims
                          ________________

                      In view of the fact that Polanco's remaining claims

            have  no merit and have  been waived, as  described below, we

            need not  consider  whether they  are properly  brought in  a

            section 2255 proceeding.  

                      Polanco complains  that the district  court did not

            confirm  for  the  jury   that  certain  testimony  had  been

            correctly  admitted,  but  he  does  not  describe  how  that

            omission  prejudiced him.   Nor  can we  see how  the court's

            failure to  confirm at the  conclusion of trial  that certain

            evidence  had  been properly  admitted could  have prejudiced

            Polanco.    Had the  court determined  that  it had  erred in

            admitting the evidence, and then failed to inform the jury of

            its decision, obviously Polanco could have been prejudiced by

            the jury's consideration of the improperly admitted evidence.

            Here, however, the  evidence was found to have  been properly

            admitted, and so the jury's consideration of the evidence was

            entirely appropriate  and the court's failure  to verify that

            could not have prejudiced Polanco.  

                    Polanco  also claims  that the  increase in  his base

            offense  level for  being a  leader and  organizer  was wrong

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because  it was based on the testimony of witnesses hoping to

            receive lesser  sentences.   Thus, Polanco does  not actually

            challenge the court's  finding that Polanco was  a leader and

            organizer, but  essentially assails  the  credibility of  the

            witnesses  testifying against  him.   On  direct examination,

            those witnesses  described the  nature of their  agreement to

            cooperate   with  the   government,  and   Polanco's  counsel

            thoroughly cross-examined them on that subject, providing the

            jury  an  adequate  basis  for  judging   their  credibility.

            Consequently, we find no merit in this claim of error.  

                    Nor  is  there  merit  in Polanco's  claim  that  the

            quantity  of drugs  he allegedly  distributed  was improperly

            based on testimony given at trial.  Polanco's only  challenge

            to  that testimony is his bare speculation that it might have

            been fabricated.  Again, Polanco's  counsel vigorously cross-

            examined   the  witnesses  in   question.    Furthermore,  at

            sentencing his counsel conceded that the presentence report's

            statement  of  the amounts  of  drugs distributed  accurately

            reflected their testimony.  

                    Finally,  Polanco claims that  enhancing his sentence

            for obstruction of justice because of his trial testimony was

            a violation of his right to testify in his own defense.  That

            bare allegation is insufficient to  state a claim for relief.

            The  district  court  determined  that  Polanco  --  who  had

            testified that  he had not  been involved  in any way  in the

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alleged  distribution  of cocaine  --  had  committed perjury

            during  the trial.   Polanco  does  not dispute  the district

            court's finding before  this court.  In  fact, he practically

            confirmed  his perjury  by asking  the district  court before

            sentencing whether there was "some way that I can collaborate

            with the government," complaining that no one had  ever asked

            him whether he wished  to collaborate.  Case law  makes clear

            that  a defendant's right to  testify on his  own behalf does

            not include the right  to commit perjury, and thus  Polanco's

            claim must  fail.  See  Nix v. Whiteside,  475 U.S. 157,  173
                               ________    _________

            (1986)  ("Whatever the  scope  of a  constitutional right  to

            testify, it is elementary  that such a right does  not extend

            to  testifying  falsely.")  (emphasis  in  original);  United
                            _______                                ______

            States  v. Grayson,  438  U.S. 41,  54  (1978) ("[t]he  right
            ______     _______

            guaranteed by law  to a  defendant is narrowly  the right  to

            testify  truthfully in accordance with  [his] oath .  . . ");

            see  also United States  v. Batista-Polanco, 927  F.2d 14, 22
            _______________________     _______________

            (1st Cir.  1991) (the obstruction of  justice enhancement for

            falsely testifying in one's own defense  does not implicate a

            constitutional  right); United  States v.  Akitoye, 923  F.2d
                                    ______________     _______

            221,  228  (1st  Cir.   1991)  (the  obstruction  of  justice

            enhancement  for  false  trial  testimony does  not  chill  a

            defendant's exercise of sixth amendment rights).

                      Finally,  we   note  that,  although   Polanco  was

            represented  by counsel, he failed  to raise the above claims

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in his direct  appeal, thereby waiving  them unless he  shows

            cause  and prejudice under  United States v.  Frady, 456 U.S.
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            152,  167 (1982).  See  United States v.  Biberfeld, 957 F.2d
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            98, 104 (3d  Cir. 1992) (the  waiver of a section  2255 claim

            may be  excused where  the defendant  shows cause  and actual

            prejudice).   Polanco has made  no such showing  and does not

            allege that his attorney  rendered him ineffective assistance

            of  counsel  in  failing  to raise  these  issues  on appeal.

            Accordingly, we conclude that summary dismissal of his motion

            without an evidentiary hearing was proper.

                      The judgment of the district court is affirmed.
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