United States v. McGill

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

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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.

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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

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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.

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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.

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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

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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.

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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.

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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

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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.

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