DocketNumber： 95-1671
Filed Date： 3/18/1996
Status： Precedential
Modified Date： 9/21/2015
March 18, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1671
ORLANDO ESPINOSA-SANCHEZ,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
____________________
Orlando Espinosa-Sanchez on brief pro se. ________________________
Guillermo Gil, United States Attorney, Rosa E. Rodriguez-Velez ______________ ________________________
and Nelson Perez-Sosa, Assistant United States Attorneys, on brief for _________________
appellee.
____________________
____________________
Per Curiam. After carefully reviewing the record __________
and the parties' briefs, we affirm the judgment of the
district court for essentially the reasons stated in its
Opinion and Order. We add the following comments.
1. The district court was not required to hold a
hearing on appellant's claim that his attorney provided
ineffective assistance by failing to call as witnesses two of
appellant's codefendants. Conspicuously absent from both of
the affidavits of these codefendants is any statement that
either codefendant would have testified on behalf of
appellant. Also missing are averments that appellant never
knew about the cocaine on board the SHEME and that appellant
never had been told about the drugs. Indeed, neither
affidavit is inconsistent with the government's position at
trial that appellant was part of the conspiracy to possess
with the intent to distribute the cocaine. Thus, even taking
the rest of the allegations in the affidavits as true, the
conclusions appellant draws from these facts are basically
"self-interested characterizations." See United States v. ___ ______________
McGill, 11 F.3d 223, 225 (1st Cir. 1993) (in deciding whether ______
to hold a hearing, the district court must take a
petitioner's factual averments as true but need not credit
"conclusory allegations, self-interested characterizations
[or] discredited inventions").
-2-
Finally, the case upon which appellant primarily
relies, United States v. Yizar, 956 F.2d 230 (11th Cir. ______________ _____
1992), is not to the contrary. In Yizar, there was no doubt, _____
unlike here, that the codefendant actually had said that
defendant was innocent. Here, in contrast, there is no
independent corroboration that Estupinan or Passos-Paternina
possessed exculpatory evidence or that appellant even named
them as potential witnesses. Moreover, the information in
their affidavits hardly amounts to a direct statement of
appellant's innocence.
2. Appellant's claim that his attorney prevented
him from taking the stand is supported by only his allegation
that his attorney led him to believe that he could not
testify. This is insufficent, without more, to require the
district court to hold an evidentiary hearing. Siciliano v. _________
Vose, 834 F.2d 29, 31 (1st Cir. 1987) (an affidavit that ____
states only that counsel refused to allow defendant to
testify on his own behalf is insufficient to establish
defendant's entitlement to a hearing on his habeas corpus
petition). See also Underwood v. Clark, 939 F.2d 473, 475-76 ___ ____ _________ _____
(7th Cir. 1991) (a "barebones assertion" that a defendant's
attorney would not let him testify is "too facile a tactic to
be allowed to succeed"; greater particularity and some
substantiation are necessary).
-3-
Again, the cases upon which appellant primarily
relies do not support his position. In one, United States _____________
v.Walker, 772 F.2d 1172 (5th Cir. 1985) (a direct appeal), ______
the defendant had told his attorney that he wished to testify
and the attorney had filed a motion to reopen the case to
allow defendant to take the stand. The court determined that
the trial court had abused its discretion in denying the
motion. Id. at 1176, 1185. In the other case, United States ___ _____________
v. Butts, 630 F.Supp. 1145 (D. Me. 1986) (a new trial _____
motion), there was independent evidence -- courtroom scenes
and counsel's testimony -- that defendant consistently had
demanded to testify on his own behalf. Id. at 1146. As ___
noted above, there is no independent corroboration of
appellant's allegation that his attorney told him that he
could not testify.
3. The remainder of appellant's claims were not
raised below and therefore will not be addressed on appeal.
See Knight v. United States, 37 F.3d 769, 772 n.2 (1st Cir. ___ ______ _____________
1994).
The judgment of the district court is affirmed. ________
-4-
Knight v. United States ( 1994 )
Thomas F. Siciliano v. George Vose, Superintendent, MCI ... ( 1987 )
United States v. Marvin Yizar ( 1992 )
United States v. McGill ( 1993 )
United States v. Roy E. Walker ( 1985 )
Hurley E. Underwood v. Richard Clark and Attorney General ... ( 1991 )