[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 97-1725
RENALDO PLEDGER,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
No. 97-2119
SEAN DIXON,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
No. 97-2245
EDWIN CARMICHAEL,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
No. 97-2297
STEVEN WADLINGTON,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Renaldo Pledger, Edwin Carmichael and Steven Wadlington on
memoranda pro se. Sean Dixon on brief pro se.
Donald K. Stern, United States Attorney, and Kevin J. Cloherty,
Assistant United States Attorney, on brief for appellee in No. 97- 2119.
February 5, 1988
Per Curiam. In a joint trial, petitioners
Renaldo Pledger, Sean Dixon, Edwin Carmichael and Steven
Wadlington were each convicted of multiple offenses stemming
from their involvement in a large-scale drug distribution
ring in Boston, Massachusetts. On direct appeal, this court
affirmed after rejecting a multitude of challenges to their
convictions and sentences. See United States v. Whiting, 28
F.3d 1296 (1st Cir. 1994). Petitioners thereafter filed
separate motions for habeas relief under 28 U.S.C. 2255,
advancing a plethora of new claims. In each instance, the
district court denied relief and then declined to issue a
certificate of appealability (CAP). See 28 U.S.C.
2253(c)(1). Petitioners have now submitted CAP requests to
this court.
In order to qualify for a CAP, a habeas petitioner must
make "a substantial showing of the denial of a constitutional
right," id. 2253(c)(2)--i.e., a showing that the issues are
debatable among reasonable jurists, that a court could decide
them in a different fashion, or that they are adequate to
deserve encouragement to proceed further, see, e.g., Barefoot
v. Estelle, 463 U.S. 880, 893 n.4 (1983). Because we
conclude that none of the petitioners has satisfied this
standard, the CAP applications will be denied and the appeals
terminated.
Petitioners have presented an assortment of overlapping
contentions, which we have divided into two categories. We
will first address a pair of joint challenges to the
convictions and sentences, and will then consider a number of
individual claims. Because most of the claims either consist
of, or are accompanied by, complaints of ineffective
assistance of counsel (IAC), and because they all prove
unavailing on the merits, we need not pause to consider
whether they each are cognizable in the habeas context or
whether any are subject to procedural default.
Joint Claims
1. All four petitioners contend that the government
withheld notes of witness interviews in violation of its
obligations under Brady v. Maryland, 373 U.S. 83 (1963), and
the Jencks Act, 18 U.S.C. 3500. It is undisputed that
several government witnesses engaged in debriefing sessions
prior to trial at which prosecutor Kelly and DEA special
agent Murphy took handwritten notes. During trial, the court
rejected defense requests for disclosure of such material.
Some time later, petitioners gained possession of notes that
the prosecutor had taken of one interview with the witness
Anser Adams. Insisting that those notes contained
exculpatory and impeachment material and were otherwise
discoverable under the Jencks Act, petitioners argue that the
government was remiss in not turning over all notes of all
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witness interviews. The district court justifiably concluded
otherwise.
The Jencks Act claim is entirely unavailing. As the
notes were never adopted by the witness and did not involve
grand jury testimony, they would fall within the statute's
purview only if they provided a "substantially verbatim"
account of what had been said. 18 U.S.C. 3500(e)(2). Such
an account must reflect the witness' own words "fully and
without distortion." Palermo v. United States, 360 U.S. 343,
352 (1959); accord, e.g., United States v. Neal, 36 F.3d
1190, 1198 (1st Cir. 1994), cert. denied, 117 S. Ct. 519
(1996); United States v. Newton, 891 F.2d 944, 954 (1st Cir.
1989). The notes here did not do so. Instead, they
evidenced "substantial selection of material" and contained
the prosecutor's "own interpretations or impressions" and
were thus "not to be produced." Palermo, 360 U.S. at 352-53;
accord, e.g., United States v. Bennett, 75 F.3d 40, 47 (1st
Cir.) (reviewing such a determination for clear error), cert.
denied, 117 S. Ct. 130 (1996).
Nor have petitioners explained how the notes were both
"favorable" and "material" to the defense, United States v.
Brimage, 115 F.3d 73, 79 (1st Cir.), cert. denied, 118 S. Ct.
321 (1997), such that the withholding thereof might
constitute a Brady violation. It suffices here to observe
that evidence is "material" if there is "a reasonable
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probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different." United States v. Blais, 98 F.3d 647, 651 (1st
Cir. 1996), cert. denied, 117 S. Ct. 1000 (1997) (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)); accord
Kyles v. Whitley, 514 U.S. 419, 432-41 (1995). Especially
given the amount of Brady and Jencks Act material that was
disclosed and the extent to which the witnesses in question
were impeached at trial, petitioners have "failed to
articulate any theory demonstrating such a reasonable
probability." Blais, 98 F.3d at 651; accord, e.g., Brimage,
115 F.3d at 79 (finding evidence to be non-material after
noting degree to which witness' character had been "sullied
in cross-examination"). Moreover, the weight of the evidence
against each of these petitioners--which we described at
length in the unpublished portion of our earlier opinion, see
Whiting, supra, slip op. at 55-57 (Dixon), 61-62 (Pledger),
66-68 (Carmichael), 68-70 (Wadlington)--would render any
Brady violation in this regard harmless, see, e.g., Bennett,
75 F.3d at 47.
We likewise disagree that the court erred in dismissing
these claims without convening a hearing or examining the
remaining witness notes in camera. A habeas petitioner is
not entitled to an evidentiary hearing where, as here, "his
allegations are 'vague, conclusory, or palpably incredible.'"
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David v. United States, F.3d , , 1998 WL 21848, at
*6 (1st Cir. 1998) (quoting Machibroda v. United States, 368
U.S. 487, 495 (1962)); accord, e.g., United States v. McGill,
11 F.3d 223, 225-26 (1st Cir. 1993). And because
petitioners' claims were unsupported by the set of notes
actually produced, we cannot fault the district court's
decision to forgo examination of the others. Compare United
States v. Strahl, 590 F.2d 10, 14-15 (1st Cir. 1978)
(cautioning against sole reliance on prosecutor's assurances
that interview notes were not covered by Jencks Act).1 1
2. All petitioners but Pledger challenge the quantity
of drugs for which they were each held accountable at
sentencing. They contend, inter alia, that the court erred
by failing to make individualized findings in this regard.
They also complain of counsel's failure to pursue these
matters, particularly in light of a clarifying amendment to
the guidelines that was adopted during the pendency of the
appeal. We perceive no error; indeed, we rejected a related
set of arguments on direct appeal.
In order to calculate the quantity of drugs for which
each petitioner was responsible, so as to determine the
applicable base offense level, the sentencing court engaged
1 Our rejection of the Brady/Jencks Act claims on the 1 merits disposes of the subsidiary IAC claims. The further suggestion in this regard that the prosecution engaged in intentional misconduct is totally without record support.
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in a two-step process. It first estimated that the
organization as a whole had distributed an average of two
kilograms of cocaine per week during its existence. Relying
on the "relevant conduct" provision in U.S.S.G. 1B1.3, it
then multiplied this figure by the number of weeks that each
petitioner had been involved. On direct appeal, petitioners
challenged the two-kilograms-per-week estimate, contending
that it lacked evidentiary support, see Whiting, 28 F.3d at
1303-05; we disagreed, describing the court's finding as a
"conservative estimate [that] left a fair margin of safety,"
id. at 1305. Petitioners now argue that the court erred by
attributing that estimate to each of them without more
particularized inquiries into what quantities were
foreseeable and were within the scope of their respective
agreements.
Petitioners' precise complaint is difficult to identify.
To the extent they are alleging that the court automatically
saddled each of them with the full amount of drugs involved
in the conspiracy without further inquiry, thereby applying
an erroneous legal standard, they are mistaken. As we
explained in the earlier appeal, petitioners "were held
responsible at sentencing for 'drugs [they] personally
handled or anticipated handling, and, under the relevant
conduct rubric, for drugs involved in additional acts that
were reasonably foreseeable by [them] and were committed in
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furtherance of the conspiracy.'" Whiting, 28 F.3d at 1304
(emphasis added) (quoting United States v. Sepulveda, 15 F.3d
1161, 1197 (1st Cir. 1993)).2 To the extent they are 2
alleging that the court's findings of foreseeability were
unsupported by the evidence (or that counsel should have so
contended), they fare no better. Three of the petitioners
(Pledger, Dixon and Wadlington) did voice such a challenge
below, and Wadlington pursued it on appeal--all without
success. See Whiting, supra, slip op. at 72-74. More
important, there has been no showing how the court's findings
in this regard might possibly have constituted clear error.
Petitioners' reliance on the 1992 revision of 1B1.3
(amendment 439) likewise proves unavailing. It is true that
this amendment was clarifying in nature and thus could have
been invoked on direct appeal. See, e.g., United States v.
LaCroix, 28 F.3d 223, 227 n.4 (1st Cir. 1994); United States
v. Carrozza, 4 F.3d 70, 74 n.2 (1st Cir. 1993). Yet we fail
to see how petitioners would have benefited from doing so,
much less how their attorneys can be thought derelict for
having failed to do so. Both the 1990 version of 1B1.3
(which was applied at sentencing) and the 1992 version
2 The presentence reports applied the same standard-- 2 stating that each petitioner was being "held accountable for the drugs sold by the enterprise, that is, for the conduct of others in furtherance of the execution of the jointly undertaken conspiracy that was reasonably foreseeable by this defendant, during the time of his involvement in the criminal enterprise."
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required that relevant conduct be "reasonably foreseeable."
And both required that it be "in furtherance of the jointly
undertaken criminal activity." As here relevant, what the
1992 amendment did was elaborate on this latter criterion by
explaining that "the court must first determine the scope of
the criminal activity the particular defendant agreed to
jointly undertake (i.e., the scope of the specific conduct
and objectives embraced by the defendant's agreement)."
U.S.S.G. 1B1.3, comment. (n.2) (1992).
Yet this merely fleshed out the preexisting standard.
The earlier version likewise had referred to conduct being
"within the scope of the defendant's agreement." See
1B1.3, comment. (n.1) (1990). Prior to the amendment, we had
explained that "the measure of a defendant's accountability
for drug transactions in which he was not personally involved
is usually congruent with the scope of his agreement with the
other participants in the criminal enterprise." United
States v. Garcia, 954 F.2d 12, 16 (1st Cir. 1992). We have
since indicated that "application note 2 [of the 1992
amendment], read as a whole, appears to use 'in furtherance'
and 'within the scope' interchangeably." LaCroix, 28 F.3d at
227 n.5. Most important, petitioners have offered no factual
support for the assertion that their colleagues' drug sales
"were outside the scope of [petitioners'] agreement[s], or,
put another way, that those transactions were other than in
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furtherance of the jointly undertaken criminal activity."
Id. at 228.3 3
Individual Claims
1. Wadlington was convicted, among other offenses, of
possessing an unregistered shotgun in violation of 26 U.S.C.
5861(d). The statutory definition of "firearm" required
proof that the shotgun possessed two characteristics: that it
had a barrel length of less than 18 inches, or an overall
length of less than 24 inches, and that it could fire (or be
restored to fire) shotgun shells. In its charge to the jury,
the court inadvertently omitted this definition--an oversight
that neither side brought to its attention. Wadlington
raised the matter on direct appeal but without success.
Subjecting the issue to plain-error scrutiny due to the lack
of objection below, we held that the error had not caused a
"miscarriage of justice" or seriously affected "the fairness,
integrity or public reputation of judicial proceedings."
Whiting, 28 F.3d at 1309 (quoting United States v. Olano, 507
U.S. 725, 736 (1993)). In so concluding, we observed that
3 A trio of subsidiary claims likewise miss the mark. 3 Petitioners contend that the court failed to notify them of its tentative findings before imposing sentence, as called for by U.S.S.G. 6A1.3(b) (1990). The record indicates otherwise. They assert that the drug-quantity information on which the court relied was inherently unreliable; we rejected an identical claim on direct appeal. See Whiting, 28 F.3d at
1305. And petitioners insist that counsel should have requested an evidentiary hearing prior to sentencing; under the circumstances, we find neither substandard performance by counsel nor prejudice resulting therefrom.
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the "undisputed evidence" showed that the statutory
definition had been met--meaning that there was "no risk"
that the omission had "resulted in the conviction of an
innocent man." Id.
Wadlington now raises the same issue by means of an IAC
claim, complaining of counsel's failure to object to the
omission. An IAC claim requires a showing of both deficient
performance and prejudice. The Supreme Court has described
the prejudice element as follows: "The defendant must show
that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Strickland v. Washington, 466 U.S. 668, 694
(1984). No such reasonable probability has been
demonstrated; to the contrary, as we earlier concluded, it is
"clear that the jury would readily have convicted" had a
proper instruction been given. Whiting, 28 F.3d at 1309.
2. Dixon complains of improper advice from trial
counsel. Specifically, he contends that he wished to plead
guilty to his substantive distribution charge while
proceeding to trial on his conspiracy charge, but was
mistakenly informed he could not do so. Since this
allegation is presented in purely conclusory form, dismissal
was appropriate. See David, F.3d at , 1998 WL at *6.
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Moreover, even if this allegation were true, Dixon has failed
to explain, and we are unable to perceive, how he was
prejudiced. The indictment charged (and the evidence showed)
that his distribution offense was committed in furtherance of
the conspiracy. As a result, a guilty plea to the former
would only have augmented the proof of his involvement in the
latter. Nor would there have been any discernible effect on
Dixon's sentence; the considerable evidence of his
participation in the conspiracy meant that, even if he had
been acquitted on the conspiracy count, the relevant-conduct
provision might well have yielded the same outcome.
3. Wadlington criticizes his attorney for advising him
not to take the witness stand. Yet when "[u]naccompanied by
coercion, legal advice concerning exercise of the right to
testify infringes no right ... but simply discharges defense
counsel's ethical responsibility to the accused." Lema v.
United States, 987 F.2d 48, 52 (1st Cir. 1993); accord, e.g.,
Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir. 1996).
Wadlington has made no allegation of coercion and, given
Wadlington's criminal history, counsel's advice can hardly be
called into question.
4. Carmichael argues that his attorney was remiss in
effectively abandoning a pretrial motion for a bill of
particulars concerning his money laundering charge. As he
notes, we declined on direct appeal to address an issue
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involving that motion because of counsel's action. See
Whiting, slip op. at 66. Yet no prejudice thereby ensued; we
went on to observe that "[h]ad counsel properly preserved the
issue, the government's provision of the Western Union
transfers would be sufficient to avoid any actual surprise or
prejudice." Id. Carmichael's more general complaints about
the extent of preparation performed by counsel are likewise
unavailing.
5. Pledger objects to the performance of his appellate
counsel. Specifically, he argues that counsel failed to
pursue a claim that the process of selecting counties from
which the petit jury pool was chosen operated in a racially
discriminatory manner. Yet the determination of which issues
have the best chance of succeeding on appeal obviously
entails the exercise of professional judgment. Judicial
scrutiny thereof "must be highly deferential," Strickland,
466 U.S. at 689--particularly where, as here, there has been
no showing that the claim has any colorable merit. No
ineffective assistance has been demonstrated.4 4
6. Pledger challenges the district court's alternative
holding that his petition was time-barred under AEDPA's one-
year statute of limitations. He contends that the "mailbox
4 Several of the other petitioners also complain of 4 counsel's failure to pursue certain claims on appeal. As we have determined each of those underlying claims to be without merit, the attorneys' conduct in this regard cannot be faulted.
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rule" governing the timing of a notice of appeal filed by an
inmate confined in an institution, see Houston v. Lack, 487
U.S. 266 (1988); Fed. R. App. P. 4(c), should likewise apply
to a habeas petition filed by such an inmate. Having
rejected his various claims on the merits, we need not
address this argument. Pledger's further contention--that
AEDPA is inapplicable whenever the underlying criminal
conviction preceded its effective date, even when the habeas
petition was filed thereafter--is meritless. See Lindh v.
Murphy, 117 S. Ct. 2059 (1997).
Conclusion
We need go no further.5 For these reasons, we share the 5
district court's assessment that none of the petitioners has
made a substantial showing of the denial of a constitutional
right. Their CAP applications are therefore denied.
The applications of petitioners Pledger, Dixon,
Carmichael and Wadlington for a certificate of appealability
are each denied, and their respective appeals are terminated.
5 All claims not mentioned herein have been considered 5 and rejected. None requires comment.
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