[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals For the First Circuit
No. 02-1243
MANUEL GONZALEZ-GONZALEZ,
Petitioner, Putative Appellant,
v.
UNITED STATES,
Respondent, Putative Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Judith H. Mizner, on motion for issuance of certificate of appealability, for putative appellant.
October 29, 2002 SELYA, Circuit Judge. The petitioner, Manuel Gonzalez-
Gonzalez, moves for a certificate of appealability, 28 U.S.C. §
2253, alleging ineffective assistance of appellate and trial
counsel. We recite only the facts necessary to limn the
petitioner's claims. We refer readers who hunger for more exegetic
detail to our opinion on direct appeal. See United States v.
Gonzalez-Gonzalez, 136 F.3d 6 (1st Cir.), cert. denied, 524 U.S.
910 (1998).
The petitioner's principal claim is that his appellate
counsel blundered by failing to argue that he (the petitioner) had
been deprived of his Sixth Amendment right to represent himself.
The record, however, shows that the district court correctly denied
the petitioner's request for self-representation because the
petitioner did not unequivocally waive his right to counsel. See
United States v. Betancourt-Arretuche, 933 F.2d 89, 92 (1st Cir.
1991) (honoring "every reasonable presumption against waiver of the
right to counsel") (citation and internal quotation marks omitted).
With his counseled motion for hybrid representation still pending,
the petitioner submitted a pro se motion stating that he "remains
in his position of requesting from the Court his pro se
representation with the assistance of his attorney . . . as standby
counsel." (emphasis supplied). The unavoidable conclusion,
reinforced by the lengthy colloquy during the second day of trial,
is that the petitioner was not asserting his right to represent
-2- himself, but, rather, was renewing his request for hybrid
representation. Accordingly, appellate counsel was not ineffective
for declining to raise the issue of self-representation.
We are somewhat more troubled by the claim that trial
error occurred during jury deliberations — error to which trial
counsel's lethargy allegedly contributed and about which appellate
counsel neglected to complain. We set the stage.
The preferred practice in this circuit is that "messages
from a deliberating jury, pertaining to ongoing deliberations,
ought to be fully disclosed to the lawyers when received, so that
the latter may be heard before the judge implements a course of
action." United States v. Parent, 954 F.2d 23, 25 (1st Cir. 1992).
According to the petitioner's unsworn memorandum,1 the district
court, without notifying either counsel, granted the jury's request
for transcripts of the testimony of two government witnesses. The
court then issued a written supplemental instruction in response to
a jury note without involving counsel in the process. In
substance, the instruction reminded the jury that it had a duty to
determine the guilt or innocence of the defendant from the evidence
in the case, and that the verdict must be unanimous as to each
count of the indictment.
1 The sworn petition alleges only that the court "decid[ed] jury notes out of presence of defendant."
-3- In the ordinary course, a habeas application must rest on
a foundation of factual allegations presented under oath, either in
a verified petition or a supporting affidavit. See, e.g., Rule 2,
Rules Governing Section 2255 Proceedings, 28 U.S.C. § 2255. Facts
alluded to in an unsworn memorandum are not sufficient. See
Barrett v. United States, 965 F.2d 1184, 1195 (1st Cir. 1992);
Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974). Here,
moreover, even were we to accept the petitioner's unsworn
allegations as true, they would not warrant a certificate of
appealability because the petitioner has identified no plausible
way in which he might have been prejudiced.
The rule in this circuit is that "a trial court's error
in failing seasonably to inform counsel about a jury note does not
require reversal if the error is benign." Parent, 954 F.2d at 25
(citing United States v. Maraj, 947 F.2d 520, 526 (1st Cir. 1991));
accord United States v. Hernandez, 146 F.3d 30, 35 (1st Cir.
1998).2 This comports with the authorities elsewhere. See, e.g.,
United States v. Bustamante, 805 F.2d 201, 203 (6th Cir. 1986);
United States v. Widgery, 778 F.2d 325, 329 (7th Cir. 1985); United
2 We have yet to decide whether the appropriate test for harmlessness in this context is that set forth in Chapman v. California, 386 U.S. 18, 24 (1967) (asking whether the error was "harmless beyond a reasonable doubt") or the more lenient inquiry delineated in Kotteakos v. United States, 328 U.S. 750, 776 (1946) (asking whether "the error had substantial and injurious effect or influence" vis-à-vis the judgment). We need not make that choice today, as the petitioner falls short under either definition of harmless error.
-4- States v. Arriagada, 451 F.2d 487, 488 (4th Cir. 1971); Jones v.
United States, 299 F.2d 661, 662 (10th Cir. 1962).
In this instance, the supplemental instructions were
correct on their face. Moreover, even though the supplemental
instructions were "delivered at a critical juncture in the case,"
they were not "out of balance" in any material respect. Parent,
954 F.2d at 26. In any event, the supplemental instructions were
similar to portions of the charge, given earlier, that counsel had
reviewed without objections. As for the transcripts, if they were
furnished to the jury at all — the court promised them only at the
conclusion of its own review — it is hardly remarkable (and
certainly not erroneous) for the court to have key testimony read
or submitted to the jury at the jury's request. See, e.g., United
States v. Argentine, 814 F.3d 783, 787 (1st Cir. 1987). The
petitioner gives us no convincing reason to think that counsel
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[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals For the First Circuit
No. 02-1243
MANUEL GONZALEZ-GONZALEZ,
Petitioner, Putative Appellant,
v.
UNITED STATES,
Respondent, Putative Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Judith H. Mizner, on motion for issuance of certificate of appealability, for putative appellant.
October 29, 2002 SELYA, Circuit Judge. The petitioner, Manuel Gonzalez-
Gonzalez, moves for a certificate of appealability, 28 U.S.C. §
2253, alleging ineffective assistance of appellate and trial
counsel. We recite only the facts necessary to limn the
petitioner's claims. We refer readers who hunger for more exegetic
detail to our opinion on direct appeal. See United States v.
Gonzalez-Gonzalez, 136 F.3d 6 (1st Cir.), cert. denied, 524 U.S.
910 (1998).
The petitioner's principal claim is that his appellate
counsel blundered by failing to argue that he (the petitioner) had
been deprived of his Sixth Amendment right to represent himself.
The record, however, shows that the district court correctly denied
the petitioner's request for self-representation because the
petitioner did not unequivocally waive his right to counsel. See
United States v. Betancourt-Arretuche, 933 F.2d 89, 92 (1st Cir.
1991) (honoring "every reasonable presumption against waiver of the
right to counsel") (citation and internal quotation marks omitted).
With his counseled motion for hybrid representation still pending,
the petitioner submitted a pro se motion stating that he "remains
in his position of requesting from the Court his pro se
representation with the assistance of his attorney . . . as standby
counsel." (emphasis supplied). The unavoidable conclusion,
reinforced by the lengthy colloquy during the second day of trial,
is that the petitioner was not asserting his right to represent
-2- himself, but, rather, was renewing his request for hybrid
representation. Accordingly, appellate counsel was not ineffective
for declining to raise the issue of self-representation.
We are somewhat more troubled by the claim that trial
error occurred during jury deliberations — error to which trial
counsel's lethargy allegedly contributed and about which appellate
counsel neglected to complain. We set the stage.
The preferred practice in this circuit is that "messages
from a deliberating jury, pertaining to ongoing deliberations,
ought to be fully disclosed to the lawyers when received, so that
the latter may be heard before the judge implements a course of
action." United States v. Parent, 954 F.2d 23, 25 (1st Cir. 1992).
According to the petitioner's unsworn memorandum,1 the district
court, without notifying either counsel, granted the jury's request
for transcripts of the testimony of two government witnesses. The
court then issued a written supplemental instruction in response to
a jury note without involving counsel in the process. In
substance, the instruction reminded the jury that it had a duty to
determine the guilt or innocence of the defendant from the evidence
in the case, and that the verdict must be unanimous as to each
count of the indictment.
1 The sworn petition alleges only that the court "decid[ed] jury notes out of presence of defendant."
-3- In the ordinary course, a habeas application must rest on
a foundation of factual allegations presented under oath, either in
a verified petition or a supporting affidavit. See, e.g., Rule 2,
Rules Governing Section 2255 Proceedings, 28 U.S.C. § 2255. Facts
alluded to in an unsworn memorandum are not sufficient. See
Barrett v. United States, 965 F.2d 1184, 1195 (1st Cir. 1992);
Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974). Here,
moreover, even were we to accept the petitioner's unsworn
allegations as true, they would not warrant a certificate of
appealability because the petitioner has identified no plausible
way in which he might have been prejudiced.
The rule in this circuit is that "a trial court's error
in failing seasonably to inform counsel about a jury note does not
require reversal if the error is benign." Parent, 954 F.2d at 25
(citing United States v. Maraj, 947 F.2d 520, 526 (1st Cir. 1991));
accord United States v. Hernandez, 146 F.3d 30, 35 (1st Cir.
1998).2 This comports with the authorities elsewhere. See, e.g.,
United States v. Bustamante, 805 F.2d 201, 203 (6th Cir. 1986);
United States v. Widgery, 778 F.2d 325, 329 (7th Cir. 1985); United
2 We have yet to decide whether the appropriate test for harmlessness in this context is that set forth in Chapman v. California, 386 U.S. 18, 24 (1967) (asking whether the error was "harmless beyond a reasonable doubt") or the more lenient inquiry delineated in Kotteakos v. United States, 328 U.S. 750, 776 (1946) (asking whether "the error had substantial and injurious effect or influence" vis-à-vis the judgment). We need not make that choice today, as the petitioner falls short under either definition of harmless error.
-4- States v. Arriagada, 451 F.2d 487, 488 (4th Cir. 1971); Jones v.
United States, 299 F.2d 661, 662 (10th Cir. 1962).
In this instance, the supplemental instructions were
correct on their face. Moreover, even though the supplemental
instructions were "delivered at a critical juncture in the case,"
they were not "out of balance" in any material respect. Parent,
954 F.2d at 26. In any event, the supplemental instructions were
similar to portions of the charge, given earlier, that counsel had
reviewed without objections. As for the transcripts, if they were
furnished to the jury at all — the court promised them only at the
conclusion of its own review — it is hardly remarkable (and
certainly not erroneous) for the court to have key testimony read
or submitted to the jury at the jury's request. See, e.g., United
States v. Argentine, 814 F.3d 783, 787 (1st Cir. 1987). The
petitioner gives us no convincing reason to think that counsel
might have objected; or that, if he had objected, he could have
changed the trial court's mind; or even that, had the transcripts
been withheld, the verdict might have been different.
In an effort to parry this thrust, the petitioner
contends that, notwithstanding the Parent rule, prejudice should be
presumed because he was "denied counsel at a critical stage of his
trial." United States v. Cronic, 466 U.S. 648, 659 (1984)
(footnote omitted). Doctrinally speaking, however, prejudice per
se is hen's-teeth rare. Indeed, two recent Supreme Court cases
-5- have emphasized just how unusual are the circumstances that would
justify a court in forgoing particularized inquiry into whether
counsel's inadequate performance undermined the reliability of a
verdict. See Mickens v. Taylor, 122 S. Ct. 1237, 1241 (2002); Bell
v. Cone, 122 S. Ct. 1843, 1850-51 (2002). In both instances, the
Court reiterated the proposition that, in the ineffective
assistance context, prejudice may be presumed only in narrowly
circumscribed situations.3 We too have emphasized the same point.
See, e.g., Ouber v. Guarino, 293 F.3d 19, 33 (1st Cir. 2002);
Scarpa v. Dubois, 38 F.3d 1, 12, 15 (1st Cir. 1994). We are
constrained by these authorities to hold that the prejudice per se
doctrine does not apply in the circumstances of this case.4
The petitioner next asserts that his various counsel
should have anticipated the Supreme Court's decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000), and that he should be resentenced
3 Moreover, the Supreme Court recently vacated the decision in French v. Jones, 282 F.3d 893, 901 (6th Cir. 2002) (affirming the grant of a state prisoner's habeas petition on the ground that the state courts "unreasonably applied harmless error analysis to French's deprivation of counsel during the supplemental instruction"). The Court remanded the case "for further consideration in light of Bell v. Cone[.]" Jones v. French, 122 S. Ct. 2324 (2002) (per curiam). 4 Our opinion in Curtis v. Duval, 124 F.3d 1 (1st Cir. 1997), is not to the contrary. Dictum aside, the Curtis court, consistent with Bell and Mickens, rejected the habeas petitioner's reliance on "Cronic's prejudice per se principle" and held that the petitioner was not "actually prejudiced." Id. at 6. We explained that the trial court's error in instructing the jury during the "transitory absence" of the petitioner's counsel "was neither substantial nor injurious," but, rather, "harmless." Id.
-6- in light of that decision. Even assuming Apprendi applies
retroactively to this case — a matter on which we take no view —
any error would be harmless. See United States v. Duarte, 246 F.3d
56, 61-62 (1st Cir. 2001) (applying harmless error analysis to
assertion of Apprendi error).
Here, the evidence overwhelmingly establishes the minimum
drug quantity needed to justify the sentence actually imposed. The
government's "very strong case against Gonzalez" included the
physical seizure of 350 kilograms of cocaine, part of a "major
shipment of cocaine and marijuana Gonzalez had imported from
Colombia to Puerto Rico in September of 1992." Gonzalez-Gonzalez,
136 F.3d at 8, 10. No more is exigible to defeat an unpreserved
Apprendi claim.
The petitioner also asseverates that his trial counsel
should have investigated and called three witnesses on his behalf.
This asseveration is unpersuasive. There is no indication that one
witness, a convicted codefendant in a related case, made available
any allegedly exculpatory information before or during the
petitioner's trial. The second witness would have offered only
cumulative impeachment testimony. The third might in turn have
been impeached with his prior statements implicating the petitioner
in several drug transactions. Under these circumstances, the
petitioner cannot overcome the presumption that counsel's decision
not to call these witnesses might be considered sound trial
-7- strategy. See, e.g., Lema v. United States, 987 F.2d 48, 55 (1st
Cir. 1993) (stating that the "decision to interview potential
witnesses, like the decision to present their testimony, must be
evaluated in light of whatever trial strategy reasonably competent
counsel devised in the context of the particular case"); United
States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir.
1974) (stating that "the decision to call or bypass particular
witnesses is peculiarly a question of trial strategy which courts
will practically never second-guess") (citation omitted).
Finally, the petitioner faults his appellate counsel for
not bringing the government to account for sharp tactics. In this
regard, he contends that the government improperly "highlighted"
alleged code words in video transcripts that were shown to the
jury, using quotation marks and contrasting typeface for emphasis.
At trial, the petitioner objected to the government's playback of
tape recordings on several grounds, including improper redaction,
manipulation of volume, and apparent errors of transcription.
Highlighting was not one of his complaints. We find the new
allegation inherently improbable and contradicted by the record.
Thus, we cannot say that appellate counsel was ineffective for
failing to raise this claim.
We need go no further. The motion for a certificate of
appealability is denied and the appeal is terminated.
So ordered.
-8-