Whiting v. United States

0[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 97-2033 DARRYL WHITING, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert E. Keeton, U.S. District Judge] Before Boudin, Circuit Judge, Coffin, Senior Circuit Judge, and Stahl, Circuit Judge. Darryl Whiting on brief pro se. Donald K. Stern, United States Attorney, Thomas C. Frongilloand Kevin J. Cloherty, Assistant United States Attorneys, on brief for appellee. June 26, 1998 Per Curiam. Petitioner Darryl Whiting, having been convicted of numerous drug-related offenses, see United Statesv. Whiting, 28 F.3d 1296 (1st Cir. 1994), appeals from the dismissal of his 28 U.S.C. 2255 petition for habeas relief. He there advanced ten claims of ineffective assistance of counsel, all of which the district court dismissed in a comprehensive pair of decisions. Petitioner pursues these same claims on appeal, along with a trio of other allegations. Except as to one minor matter, we affirm the judgment in all respects. I. With regard to the ineffective-assistance claims, we agree, substantially for the reasons recited by the district court, that petitioner has failed to establish that counsel's conduct was deficient. We likewise think he has failed to establish that any such deficiency prejudiced his defense. Little need exists to augment the district court's discussion. We add the following comments primarily for emphasis. 1. Petitioner's first three complaints--that counsel failed to interview potential witnesses, failed to seek a severance in order to secure testimony from the codefendants at trial, and otherwise failed to reasonably present petitioner's defense--rely on a series of affidavits submitted by eight of his codefendants. Yet as the district court properly found, those submissions are devoid of admissible evidence and are deserving of little if any weight. Apart from such affidavits, petitioner never elaborated on what the prospective testimony from these individuals would have been. Moreover, because of the involvement of such persons in the drug operation, counsel reasonably could have thought that the risk of impeachment was inordinate. He reasonably could have concluded that a motion for severance would have been futile. And a line of defense that counsel allegedly ignored was in fact introduced, albeit not in the manner apparently preferred by petitioner. The strategic decisions made by counsel in these various respects cannot be deemed deficient performance. 2. Petitioner's second trio of claims all involve the admission of coconspirator statements. Each proves unavailing. His allegation of governmental misconduct in this regard is unsupported. Contrary to his initial suggestion, the court did make a Petrozziello ruling. And no Bruton problem arose, inasmuch as the statements fell within the coconspirator exception to the hearsay rule. See, e.g., Bourjaily v. United States, 483 U.S. 171, 182 (1987); United States v. Saccoccia, 58 F.3d 754, 779 (1st Cir. 1995), cert. denied, 517 U.S. 1105 (1996). 3. Petitioner next advances a pair of claims involving the calculation of drug quantity for purposes of sentencing--a matter addressed by this court at some length on direct appeal. See Whiting, 28 F.3d at 1304-06. He first asserts that counsel was derelict in failing to request an evidentiary hearing on the matter. Yet substantial evidence had already been adduced, the matter was vigorously contested at sentencing, and counsel might reasonably have thought that any evidentiary shortfall would work in his client's favor. Nor has petitioner explained how a hearing might have altered the sentencing determination. His effort on appeal to identify new evidence that could have been adduced is spirited but unpersuasive; moreover, the government was prepared to (and twice proposed to) put on additional evidence of its own. Petitioner's second claim-- that counsel failed to argue on appeal that the calculation of drug quantity was based on a "misconception" of the evidence-- also fails. No appreciable difference appears between such an argument and the sentencing challenges that were actually raised on appeal. 4. Petitioner also complains of counsel's failure to pursue a second argument on appeal: that the jury selection process resulted in the deliberate exclusion of blacks. The identical claim was rejected in the recent habeas appeals brought by petitioner's codefendants. See Pledger v. United States, 1998 WL 88515, at *5 (1st Cir. 1998) (per curiam). No reason exists to reach a different result here; petitioner has failed to identify a colorable claim in this regard, and counsel thus cannot be faulted for eschewing it. 5. Petitioner's remaining ineffective-assistance claim, which accuses counsel of a conflict of interest because of his subsequent professional association with the lead prosecutor, has been effectively abandoned on appeal. II. One other matter remains. While the habeas action was pending, petitioner submitted a motion for return of property that he alleged had been unlawfully seized and forfeited. The clerk's office, it appears, filed the motion in the habeas case; the district court understandably dismissed the motion without prejudice on the ground that it was not cognizable in a habeas proceeding. Petitioner replied that he had intended the motion as an independent action--an argument he has reiterated on appeal. The record so reflects: the motion bore a different caption than his earlier habeas pleadings; unlike those earlier pleadings, it contained no docket number; and it specifically cited Fed. R. Civ. P. 41(e). We have held that "district courts have jurisdiction to entertain collateral due process attacks on administrative forfeitures," and that "such challenges may be pursued in a civil action under 28 U.S.C. 1331." United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995) (per curiam). Moreover, "[w]here criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint." Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir. 1992) (quoted in Giraldo, 45 F.3d at 511). This is especially so where the movant appears pro se. See, e.g., United States v. Mosquera, 845 F.2d 1122, 1126 (1st Cir. 1988) (per curiam). Accordingly, we think it appropriate to remand this single issue to the district court for further proceedings. We of course express no views as to whether the claim has any potential merit, or whether it might be subject to dismissal on some other ground. The dismissal of the motion for return of property is vacated and that claim remanded to the district court for further proceedings. The judgment is otherwise affirmed.