LeBon v. United States ( 1995 )

USCA1 Opinion

        December 13, 1995       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT











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        No. 95-1634





                                   PETER A. LEBON,



                                     Petitioner,



                                          v.



                              UNITED STATES OF AMERICA,



                                     Respondent.







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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                        FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Jose Antonio Fuste, U.S. District Judge]
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                                 ____________________



                                        Before



                                Selya, Stahl and Lynch,

                                   Circuit Judges.
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            Peter A. Lebon on brief pro se.
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            Donald  K. Stern, United  States Attorney,  and Christopher Bator,
________________                                _________________

        Assistant U.S. Attorney, on brief for respondent.





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                 Per Curiam.  We  have carefully reviewed the  record and
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            affirm the  district court's dismissal of  appellant's   2255



            petition without an evidentiary hearing.



                 1.  Counsel's failure  to subpoena Tina Pina's telephone



            records was  a permissible  strategic decision which  did not



            constitute ineffective assistance of  counsel.  That Tina had



            left  in   place  a  block  preventing   her  from  receiving



            appellant's calls would have undercut counsel's spurned woman



            strategy and would not have been particularly probative since



            the jury might instead have concluded  that the apology calls



            occurred  at a  later  time and  that  Tina had  simply  been



            mistaken about the date.



                 2.    Any  error  in  introducing  the  nature  of   the



            underlying felony  conviction was harmless in  view of Stefan



            Pina's testimony concerning  defendant's access  to guns  and



            motive to possess one.



                 3.  For the reasons stated in the district court's March



            30,  1995 and  May 23,  1995 opinions, appellant's  claims of



            prosecutorial misconduct do not warrant habeas relief.



                 Affirmed.
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