United States v. McGill

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 93-1023

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    STEVEN McGILL,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
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                              _________________________

                                        Before

                                Selya, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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                              _________________________

               Randy Olen, with  whom David N. Cicilline was  on brief, for
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          appellant.
               Louise A.  Lerner, Attorney,  Civil Rights  Division, United
               _________________
          States Dept.  of  Justice,  with whom  James  P.  Turner,  Acting
                                                 _________________
          Assistant Attorney  General,  Jessica  Dunsay  Silver,  Attorney,
                                        _______________________
          Civil Rights Division, Edwin J. Gale, United States Attorney, and
                                 _____________
          Anthony C.  DiGioia, Assistant  United States  Attorney, were  on
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          brief, for the United States.

                              _________________________

                                  November 24, 1993

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SELYA, Circuit Judge.  This appeal impels us to revisit
                    SELYA, Circuit Judge.
                           _____________

          a  tragic incident  that occurred  nearly  a decade  ago.   After

          touring familiar terrain,  we affirm the district  court's denial

          of relief under 28 U.S.C.   2255 (1988).

          I.  BACKGROUND
          I.  BACKGROUND

                    Defendant-appellant Steven  McGill worked  as a  prison

          guard at a state penitentiary in Cranston, Rhode Island.  On July

          10, 1984,  at about 3:30  p.m., McGill was conversing  with Roger

          Alessio  (an inmate)  in  a  so-called  "reception area"  at  the

          prison.  A second guard,  Kenneth Kaplan, passed through the area

          en route to the kitchen and, following standard  practice, handed

          his weaponry  to McGill  for safekeeping.   In Kaplan's  absence,

          McGill began to mimic elements of  a scene from a motion picture,

          The Deerhunter (Universal  Studios 1978), depicting the  abuse of
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          prisoners of war  by North Vietnamese soldiers.  In the course of

          this  periculous psychodrama,  McGill  forced  Alessio to  remain

          seated while  he, McGill, emptied  the second guard's  handgun of

          all but one bullet, spun  the cylinder several times, flailed his

          arms wildly, and screamed, "Mau!  Mau!"  McGill proceeded to pull

          the trigger twice, first while aiming the weapon at his own head,

          and thereafter while aiming it at  Alessio's head.  On the second

          pull  of  the  trigger,  the  gun  discharged, resulting  in  the

          inmate's death.

                    A jury  convicted McGill  of depriving  another of  his

          civil rights  while acting under  color of state law,  with death

          resulting.    See  18  U.S.C.    242  (1988).    We  affirmed the
                        ___

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conviction  on direct  appeal,  without  prejudice,  however,  to

          appellant's  right   to  litigate   questions  concerning   trial

          counsel's  effectiveness   through  an   application  for   post-

          conviction relief.  See United States v. McGill, 952 F.2d 16, 17-
                              ___ _____________    ______

          19  (1st Cir.  1991).   The district court  subsequently rejected

          appellant's  ineffective  assistance  claim  without  pausing  to

          convene an evidentiary hearing.  The instant appeal followed.

          II.  ISSUES PRESENTED
          II.  ISSUES PRESENTED

                    This appeal presents  two issues.   We deal first  with

          the contention that the court below  erred in refusing to hold an

          evidentiary  hearing   on  appellant's   application  for   post-

          conviction   relief.    Once   past  that  hurdle,   we  confront

          appellant's assertion  that the  court erred  in declaring  trial

          counsel's services  acceptable notwithstanding  that counsel  (a)

          allowed The Deerhunter to be shown  to the jury in its  entirety,
                  ______________

          without objection, and (b) failed to produce a firearms expert as

          promised in the opening statement.

          III.  THE NEED FOR AN EVIDENTIARY HEARING
          III.  THE NEED FOR AN EVIDENTIARY HEARING

                    Courts  are  busy  places.    Not  surprisingly,  then,

          evidentiary hearings on motions are the exception, not  the rule.

          We have repeatedly  stated that, even in the  criminal context, a

          defendant is not  entitled as of right to  an evidentiary hearing

          on a pretrial or posttrial  motion.  See, e.g., United  States v.
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          Mala, ___ F.3d ___, ___ (1st Cir. 1993) [No. 91-2229, slip op. at
          ____

          8-9]; United  States v.  Tardiff, 969 F.2d  1283, 1286  (1st Cir.
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          1992); United  States v.  DeCologero, 821 F.2d  39, 44  (1st Cir.
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1987).  Thus, a party seeking an evidentiary hearing must carry a

          fairly  heavy  burden   of  demonstrating  a  need   for  special

          treatment.  See  United States v. Panitz, 907  F.2d 1267, 1273-74
                      ___  _____________    ______

          (1st Cir. 1990) (collecting cases).

                    In most situations, motions can be  "heard" effectively

          on the papers,  with the parties submitting  evidentiary proffers

          by means of affidavits, documentary exhibits, and the like.  See,
                                                                       ___

          e.g., Aoude  v.  Mobil Oil  Corp., 862  F.2d 890,  894 (1st  Cir.
          ____  _____      ________________

          1988); DeCologero,  821 F.2d at  44.  In borderline  cases "[t]he
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          test  for granting  an  evidentiary hearing  in  a criminal  case

          should  be substantive:    did the  defendant  make a  sufficient

          threshold  showing  that material  facts  were  in  doubt  or  in

          dispute?"  Panitz, 907 F.2d at 1273.  Applying this standard, the
                     ______

          court below, after allowing the parties to supplement the record,

          see  Rule 7, Rules Governing Section 2255 Proceedings, determined
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          that   there  were   "no  factual   issues   in  dispute,"   and,

          consequently, refused to schedule an evidentiary hearing.

                    Appellant  derides  this  ruling.     He  claims  that,

          although section  2255  petitions are  admittedly  motions,  see,
                                                                       ___

          e.g., Rule 2, Rules Governing Section 2255 Proceedings,  they are
          ____

          special, and the movant should be afforded an evidentiary hearing

          as a  matter of course  unless the government shows  that none is

          necessary.   This thesis    which  implies  that something  about

          section  2255 creates  a  presumption  in  favor  of  evidentiary

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hearings1 rather than  the contrary presumption that  attends the

          filing of  most motions    is  unavailing.   The language  of the

          federal habeas  statute does not  require a court to  reverse the

          usual presumption.

                    When  a petition  is brought  under  section 2255,  the

          petitioner  bears  the burden  of  establishing the  need  for an

          evidentiary hearing.  See Mack v. United States, 635 F.2d 20, 26-
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          27 (1st Cir. 1980); United  States v. DiCarlo, 575 F.2d 952,  954
                              ______________    _______

          (1st Cir.),  cert. denied, 439  U.S. 834 (1978).   In determining
                       _____ ______

          whether the  petitioner has carried  the devoir of  persuasion in

          this respect,  the court must  take many of  petitioner's factual

          averments  as  true,  but  the  court need  not  give  weight  to

          conclusory   allegations,    self-interested   characterizations,

          discredited inventions, or  opprobrious epithets.  See  Mack, 635
                                                             ___  ____

          F.2d at 27; Otero-Rivera v. United States, 494 F.2d 900, 902 (1st
                      ____________    _____________

          Cir. 1974).   Moreover, when,  as in  this case,  a petition  for

          federal habeas relief  is presented to the judge  who presided at

          the petitioner's  trial, the  judge is at  liberty to  employ the

          knowledge  gleaned during previous  proceedings and make findings

          based  thereon  without  convening an  additional  hearing.   See
                                                                        ___

          DiCarlo, 575 F.2d at 954-55.
          _______
                              
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               1The statute provides in pertinent part:

                    Unless the  motion and the  files and records
                    of  the  case  conclusively   show  that  the
                    prisoner is  entitled   to  no  relief,   the
                    court  shall .  . .  grant  a prompt  hearing
                    thereon . . . .

          28 U.S.C.   2255.

                                          5

We have  distilled these  principles into  a rule  that

          holds a hearing  to be unnecessary "when  a   2255 motion  (1) is

          inadequate  on its  face, or  (2) although  facially  adequate is

          conclusively refuted  as to  the alleged facts  by the  files and

          records of the case."  Moran  v. Hogan, 494 F.2d 1220, 1222  (1st
                                 _____     _____

          Cir. 1974).   In  other words,  a "   2255 motion  may be  denied

          without a hearing  as to those allegations which,  if accepted as

          true, entitle  the  movant to  no relief,  or which  need not  be

          accepted as true because they state conclusions instead of facts,

          contradict  the record, or are `inherently incredible.'"  Shraiar
                                                                    _______

          v. United  States, 736 F.2d  817, 818 (1st Cir.  1984) (citations
             ______________

          omitted);  see also  Rule  4(b),  Rules  Governing  Section  2255
                     ___ ____

          Proceedings.

                    Against  this backdrop, it is readily apparent that the

          district court did not err  in denying appellant's request for an

          evidentiary hearing.   Appellant brought his petition  before the

          very judge who presided at his trial.  In doing so, he mounted no

          serious challenge on  the facts.  Rather, as  we elucidate below,
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          he sought to place a  particular gloss on, and draw a  particular

          set  of conclusions  from, essentially  undisputed  facts.   That

          undisputed facts may  plausibly be interpreted in  different ways

          does  not  entitle  an  interested  litigant  to  an  evidentiary

          hearing.   See,  e.g., United States  v. Garcia, 954  F.2d 12, 19
                     ___   ____  _____________     ______

          (1st  Cir.  1992).   Under  the  circumstances  reflected by  the

          instant  record,  an  evidentiary hearing  would  have  served no

          useful purpose.

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IV.  THE INEFFECTIVE ASSISTANCE CLAIM
          IV.  THE INEFFECTIVE ASSISTANCE CLAIM

                    To  succeed in setting  aside a conviction  premised on

          ineffective assistance  of counsel,  a petitioner  must establish

          both  constitutionally deficient  performance  on his  attorney's

          part and concomitant prejudice, or, phrased another way, that the

          quality of legal  representation at his trial was  so inferior as

          to   be  objectively  unreasonable,  and  that  this  incompetent

          lawyering redounded to his substantial detriment.  See Strickland
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          v. Washington, 466 U.S. 668, 689-94 (1984).
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                    Here,  appellant excoriates  counsel  for two  tactical

          decisions   that  he   contends  were   outside   the  realm   of

          reasonableness.   We  need  not  reach the  second  stage of  the

          Strickland  inquiry in either  instance, for we  find appellant's
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          criticisms of these lawyerly stratagems to be unwarranted.2
                              
          ____________________

               2There  is  some  uncertainty  surrounding  the standard  of
          appellate  review.  Before  Strickland, the rule  in this circuit
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          was  that fact-based  findings  made  by a  district  judge on  a
          section  2255  petition      including  petitions  that  asserted
          ineffective  assistance claims    were to  be reviewed  for clear
          error.   See DiCarlo,  575 F.2d  at 954-55.   This rule  obtained
                   ___ _______
          whether  the findings  were made  with or without  an evidentiary
          hearing.   See  id.   This  rule may  or  may not  have  survived
                     ___  ___
          Strickland, a  habeas case  under 28 U.S.C.    2254,  wherein the
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          Court observed that "although district court findings are subject
          to  the  clearly erroneous  standard  of  Federal  Rule of  Civil
          Procedure 52(a), both the performance and prejudice components of
          the ineffectiveness inquiry are mixed questions of fact and law."
          Strickland, 466 U.S. at 698.  Although we have not yet considered
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          the  significance of  this statement  vis-a-vis  the standard  of
          appellate review  in section 2255 proceedings, at least one court
          has read the quoted statement to suggest that, with the exception
          of historical facts,  district court findings  in a section  2255
          ineffective  assistance case  should  be reviewed  de novo.   See
                                                             __ ____    ___
          United States v.  Miller, 907 F.2d 994, 996-97  (10th Cir. 1990);
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          see also  Fields v.  Attorney General, 956  F.2d 1290,  1297 n.18
          ___ ____  ______     ________________
          (4th Cir. 1992)  (same;   2254 proceeding).  There is, of course,
          another  possible  interpretation  of  the  Court's  words,  more

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A
                                          A

                    At  trial,  appellant's  counsel  stipulated  that  The
                                                                        ___

          Deerhunter could  be  exhibited  to the  jury  in  its  entirety.
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          Appellant  says that he consistently opposed this maneuver,3 that

          his  counsel  knew  of his  opposition,  and  that  no reasonably

          competent  defense  attorney  would  have  entered  into  such  a

          stipulation.  We disagree.

                    In  an  affidavit  submitted  in  conjunction  with  an

          earlier motion, appellant's trial counsel explained his thinking.

          The prosecution wished to introduce  a 15-minute excerpt from the

          film, bearing  directly on  the behavior  mimicked by  appellant.

          Based on  his  judgments concerning  relevance, probative  value,

          unfairly prejudicial impact, and how the judge would likely rule,

          counsel  calculated that  he would  not  prevail on  a motion  to

          exclude the film clip.  In  an effort to cut anticipated  losses,
                              
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          consonant  with  DiCarlo:    that,  while  the  district  court's
                           _______
          underlying findings  of fact are  reviewed only for  clear error,
          its ultimate  legal  conclusions may  be  reviewed more  or  less
          strictly  according to the  degree that they  are fact-dominated.
          Cf. In re Extradition of Howard, 996 F.2d 1320, 1327-28 (1st Cir.
          ___ ___________________________
          1993) (elaborating standard for mixed questions of fact and law).
          We  leave  this  vexing  question  for   another  day  as,  here,
          regardless of  which standard of  review obtains,  the result  is
          unaffected.

               3While McGill has  never recanted his admission  that he was
          mimicking  a scene  from The  Deerhunter,  he has  for some  time
                                   _______________
          vehemently denied  that he was playing "Russian  roulette."  This
          seems  to be  the  impetus  for his  personal  opposition to  the
          admission of the  film into evidence.   It is true that  no money
          changed hands  in appellant's version  of the scene, and  that he
          shot the inmate directly, rather than forcing the inmate to shoot
          himself.     But   appellant's  distinction   is   of  no   legal
          significance, for the self-conscious  patterning of his  behavior
          after that of  characters in the film  suffices to make  the film
          relevant.

                                          8

he obtained  a stipulation from  the prosecution that  the entire

          three-hour  movie would  be  shown, in  the expectation  that the

          impact of the critical scene would be dissipated.

                    Counsel's  intuition that an objection to the film clip

          would have failed  is supported by our current  assessment of the

          situation.    His  intuition is  also  supported  by our  earlier

          conclusion,  albeit on "plain  error" review, that  the movie was

          relevant to  the jury's deliberations.   See McGill, 952  F.2d at
                                                   ___ ______

          18-19.  Last, but far  from least, this intuition derives staunch

          support from  the opinion of  the trial judge,  who characterized

          counsel's strategic choice as objectively reasonable.

                    We will  not belabor the point.  To avoid the shoals of

          ineffective   assistance,  an   attorney's   judgment  need   not

          necessarily  be  right,  so  long  as  it  is  reasonable.    See
                                                                        ___

          Strickland, 466 U.S. at 687-91.  Here, counsel made an unarguably
          __________

          reasonable  choice.    In  acting  on it,  he  extracted  a  fair

          concession  for   the   ensuing   stipulation,   compelling   the

          prosecution to show the entire film rather than zeroing in on the

          shorter,  more  powerful  excerpt.4    And,   finally,  counsel's

          decision  not  to  abide by  the  wishes  of  his client  has  no

          necessary bearing  on the  question  of professional  competence;

          indeed, in some instances, listening to the client rather than to

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               4We note that counsel's elucidation of his strategy comports
          with his conduct for the duration  at the trial.  In his  closing
          statement,  counsel dismissed the film as boring, irrelevant, and
          offensive,  and attempted to use the motion picture as a whole to
          his advantage by picking up on  a piece of dialogue unrelated  to
          the critical scene.

                                          9

the  dictates of  professional  judgment  may  itself  constitute

          incompetence.  See Bell v. Georgia, 554 F.2d 1360, 1361 (5th Cir.
                         ___ ____    _______

          1977).

                                          B
                                          B

                    At  the trial,  defense  counsel  elected  to  make  an

          opening statement prior to presentation of the prosecution's case

          in  chief.  He  told the jury  that he would  produce "a firearms

          expert" as a defense witness.  He did  not, however, explain what

          the substance  of the  expert's testimony would  be.   As matters

          turned out,  counsel decided not  to call the expert.   Appellant

          says  the breach of the attorney's forecast comprised ineffective

          assistance.  We think not.

                    Although  a failure to  produce a promised  witness may

          under some circumstances  be deemed ineffective  assistance, see,
                                                                       ___

          e.g., Anderson v.  Butler, 858 F.2d 16,  19 (1st Cir.  1988), the
          ____  ________     ______

          determination  of inefficacy  is necessarily  fact-based.   "[N]o

          particular set  of rules can  be established to  define effective

          assistance, as hard-and-fast rules would  inevitably restrict the

          independence  and latitude counsel  must have in  making tactical

          and strategic  decisions."  United  States v.  Natanel, 938  F.2d
                                      ______________     _______

          302, 310 (1st Cir. 1991), cert. denied, 112 S. Ct. 986 (1992).
                                    _____ ______

                    In  this case, counsel's handling of the on-again, off-

          again expert testimony  was not only defensible,  but impressive.

          Counsel  refrained  from  calling  the  expert  witness  for  two

          reasons.    First,   after  making  the  opening   statement,  he

          discovered that his previously retained  witness had feet of clay

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and could  easily be impeached.   Second, and more  important, he

          succeeded,  by   dint  of   skillful  cross-examination   of  the

          prosecution's firearms expert, in eliciting much the same opinion

          evidence that he  hoped to establish through his own expert.  The

          prosecution's expert was  led to concede that the  trigger of the

          murder weapon was so sensitive that pulling it could have been an

          "unconscious act"    a  concession that defense  counsel used  to

          good effect in his summation.

                    Knowing when to quit is often a hallmark of commendable

          courtroom advocacy.   Thus, having  proved his point  through the

          prosecution's witness, defense  counsel can  scarcely be  faulted

          for deciding  to leave  well enough  alone.  As  the trial  judge

          stated:  "The decision not to call an easily impeachable witness,

          when  the testimony  sought  from the  witness  had already  been

          introduced  from   another  expert,  was  a  reasonable  tactical

          decision."  We find ourselves in full accord.

          V.  CONCLUSION
          V.  CONCLUSION

                    Because the record here  conclusively demonstrates that

          appellant is not  entitled to post-conviction relief,  we need go

          no further.   We rule (1) that appellant did not have an absolute

          right to an evidentiary hearing,  and (2) that the district court

          did not err in finding  that the proficiency of appellant's legal

          representation surpassed the constitutional minimum.

Affirmed.
          Affirmed.
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