Pope v. Marshall

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2095
JOSEPH POPE,
Petitioner, Appellant,
v.
JOHN MARSHALL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Joseph Pope on brief pro se.
Thomas F. Reilly, Attorney General, and Annette C. Benedetto,
Assistant Attorney General, on brief for appellee.
October 9, 2003
Per Curiam. Pro se petitioner Joseph Pope appeals a district
court order that denied his claims for habeas relief. See 28
U.S.C. § 2254. The court thereafter issued a certificate of
appealability with respect to the petitioner's ineffective
assistance of trial and appellate counsel claims. Having
thoroughly reviewed the record and the parties' briefs on appeal,
we agree that petitioner is not entitled to habeas relief,
substantially for the reasons stated by the district court. The
record shows that defense counsel's advice that petitioner should
not testify was a reasonable strategic choice, and petitioner has
failed to overcome the presumption of correctness that attaches to
the finding that he validly waived his right to testify.1
Petitioner has failed to show that the Supreme Judicial Court's
decision rejecting his claim that his trial counsel rendered
ineffective assistance by failing to object to the trial court's
instructions concerning the petitioner's right to remain silent was
contrary to or an unreasonable application of clearly established
federal law as determined by the Supreme Court. The petitioner's
remaining claims fail, either because they are meritless or because
they are procedurally defaulted and petitioner has failed to make
the showing required to excuse his default.
1
Petitioner implies that his waiver cannot be valid absent
a colloquy with the trial judge. That is plainly incorrect. See
Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987).
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In view of the foregoing, we need not reach the statute of
limitations issue. The judgment of the district court is affirmed.
See Loc. Rule 27(c).
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