USCA1 Opinion
October 8, 1992 [NOT FOR PUBLICATION]
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No. 92-1276
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL J. DONLON,
Plaintiff, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Daniel J. Donlon on brief pro se.
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Jeffrey R. Howard, United States Attorney, and Peter E. Papps,
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First Assistant United States Attorney, on brief for appellee.
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Per Curiam. We affirm the judgment of the
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district court denying appellant's petition to vacate, set
aside or correct sentence under 28 U.S.C. 2255 for the
reasons stated in the district court's carefully considered
order of February 6, 1992. We add only the following.
The Constitution does not guarantee petitioner a
winning defense, only the assistance of counsel that, under
the circumstances present at the time of trial, does not
"f[a]ll below an objective standard of reasonableness."
Strickland v. Washington, 466 U.S. 668, 698 (1984); United
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States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991).
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"Failure to make the required showing of either deficient
performance or sufficient prejudice defeats an
ineffectiveness [of counsel] claim." Strickland, 466 U.S. at
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700. Petitioner bears the burden to show the entitlement to
an evidentiary hearing, Barrett v. United States, 965 F.2d
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1184, 1193 (1st Cir. 1992), and must affirmatively establish
both the "performance" and "prejudice" components of the
Strickland analysis. Strickland, 466 U.S. at 687.
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We find, in concert with the district court, that,
under the "highly deferential" scrutiny ordained by
Strickland, id. at 689, petitioner's proffers failed to
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"overcome the presumption that . . . the challenged action[s]
'might be considered sound trial strategy.'" Id. at 698
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(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
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Since appellant does not contend that his lawyer's trial
conduct resulted from lack of a thorough investigation, or
neglect or ignorance, tactical decisions, such as not calling
particular defense witnesses in the circumstances presented
here, are among the "plausible options" that are "virtually
unchallengeable." Barrett, 965 F.2d at 1193 (quoting
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Strickland, 466 U.S. at 690). As such, they "cannot be
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second-guessed on collateral review." Id. at 1194 n.19; see
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also Natanel, 938 F.2d at 310.
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Regarding the claim that his attorney refused to
allow him to testify at his trial, petitioner's affidavit,
read in light of the record, suggests no more than that the
defendant, upon advice of counsel, made the decision not to
testify. In Siciliano v. Vose, 834 F.2d 29, 31 (1st Cir.
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1987), we found defendant's conclusory collateral relief
claims that his attorney prevented him from testifying at his
trial not supported by specific facts. Here, petitioner's
affidavit that his attorney "insisted" that he not testify,
and that he himself "insisted" that he wanted to testify,
merely states conclusions which are totally lacking in
detailed factual support. United States v. Butt, 731 F.2d
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75, 77 (1st Cir. 1984). So read, petitioner has failed to
demonstrate that his constitutional right to testify was
abridged. Siciliano, 834 F.2d at 31. Nothing in the record
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"provide[s] any reasons for concluding that any such specific
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factual allegations would be credible." Id. at 31 (emphasis
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added). Nor does petitioner otherwise show, much less
suggest, that defense counsel overlooked a viable defense.
See United States v. Porter, 924 F.2d 395, 397 (1st Cir.
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1991). Consequently, the decision by the trial judge, who
was thoroughly familiar with all the proceedings in the case,
not to hold an evidentiary hearing was entirely proper.
Ouellette v. United States, 862 F.2d 371, 377-78 (1st Cir.
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1988).
The district court correctly concluded that "there
is not a reasonable probability that the jury's conclusion
would have been different if the evidence which petitioner
now says [his] attorney ... should have offered had been
presented to it," and that, accordingly, petitioner was
entitled to no relief. Rule 4(b), Rules governing 2255
proceedings ("If it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in
the case that the movant is not entitled to relief in the
district court, the judge shall make an order for its summary
dismissal.").
The judgment of the district court is affirmed.
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