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]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Randy Olen, with whom David N. Cicilline was on brief, for
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
brief, for the United States.
November 24, 1993
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
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
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
2
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
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
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.
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.
1992); United States v. DeCologero, 821 F.2d 39, 44 (1st Cir.
3
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
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
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
4
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-
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.
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,
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.
6
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
v. Washington, 466 U.S. 668, 689-94 (1984).
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
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
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
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
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);
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
7
A
At trial, appellant's counsel stipulated that The
Deerhunter could be exhibited to the jury in its entirety.
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,
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
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
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
10
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
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.
11