USCA1 Opinion
March 15, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2054
ANDRE LOPEZ POLANCO,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Andre Lopez Polanco on brief pro se.
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Richard S. Cohen, United States Attorney, Margaret D. McGaughey,
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Assistant United States Attorney, and Thimi R. Mina, Assistant United
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States Attorney, on brief for appellee.
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Per Curiam. Andre Lopez Polanco was convicted of
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sentence. He now appeals the district court's summary
and abetting the possession with intent to distribute
conspiring to distribute cocaine and of possessing and aiding
conspiring to possess with intent to distribute and of
dismissal of his motion. We affirm.
Polanco brought a motion under 28 U.S.C. 2255 to vacate his
cocaine. After we confirmed his conviction on appeal,
it did not tell the jury what its final decision was; (3) the
following grounds for relief: (1) he received ineffective
telephone conversation; (2) the district court told the jury
challenge the court's admission of testimony about a certain
assistance of counsel because his appellate attorney did not
final ruling after all the evidence had been presented, but
that it would admit that testimony conditionally and make a
four-level increase in his base offense level for being a
In his section 2255 motion, Polanco alleged the
testimony of witnesses hoping to receive lesser sentences,
have distributed was calculated by adding together the
a conviction"; (4) the quantity of cocaine he was alleged to
amounts the government's witnesses stated they had received
rendering such testimony "a form of coercion in order to get
two-level increase in offense level for obstruction of
from him, amounts which could have been fabricated; (5) the
leader and organizer was wrong because it was based on the
justice, which the court based on his perjury at trial,
violated his "right to self-defense"; and (6) the district
court did not hold an evidentiary hearing.
We have stated that summary dismissal is
appropriate when a section 2255 petition is inadequate on its
face, or is conclusively refuted as to the alleged facts by
the files and records of the case. Barrett v. United States,
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965 F.2d 1184, 1186 (1st Cir. 1992). Summary dismissal
without an evidentiary hearing is also proper if the grounds
for relief stated in the motion are conclusory
generalizations or assertions without "sufficiently
particular and supportive allegations of fact" showing why
habeas relief is warranted. Id.; see also Bernier v. Moore,
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441 F.2d 395, 396 (1st Cir. 1971) (per curiam); Aubut v.
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Maine, 431 F.2d 688, 689 (1st Cir. 1970). Because Polanco's
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motion is inadequate on its face, presenting claims which are
either refuted as to alleged facts by the record, conclusory
or otherwise without merit, we affirm the dismissal of
Polanco's petition.
1. Ineffective Assistance of Counsel
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Polanco alleges that his appellate counsel rendered
ineffective assistance by not challenging the trial court's
admission of testimony about a certain telephone conversation
which Polanco alleges was hearsay. A claim of ineffective
assistance of counsel is properly raised in a section 2255
motion, see United States v. Caggiano, 899 F.2d 99, 100 (1st
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Cir. 1990), but Polanco's claim fails for lack of
specificity. Polanco provides no identifying details about
the conversation he is referring to, and does not say which
witness testified about the conversation. Although the
transcripts submitted to this court contain testimony about a
telephone conversation which is probably the one in question,
other trial transcripts were not made available to this
court, and so we cannot know for sure that the conversation
in the transcripts we have is the relevant conversation. In
any event, Polanco does not explain how admission of
testimony about that telephone conversation prejudiced him,
and prejudice is not apparent from the record. Three
witnesses independently testified that Polanco had provided
them with cocaine, which they distributed, that they had paid
the proceeds from their cocaine sales to Polanco, and that
they had made out-of-state trips with Polanco to pick up
cocaine for distribution within the state. That evidence was
sufficient to convict him of the drug charges against him.
We have said that it is well within the district
court's discretion to decline to hold a hearing where a
habeas petitioner merely states what counsel's alleged act or
omission is without explaining why it constituted "gross
impropriety or prejudicial misconduct." Bernier, 441 F.2d at
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396. This is so even where the petitioner is proceeding pro
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se. Id. Because Polanco did not provide any factual details
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to support his claim of ineffective assistance of counsel,
and the record suggests that no such facts exist, summary
dismissal was appropriate.
2. Remaining Claims
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In view of the fact that Polanco's remaining claims
have no merit and have been waived, as described below, we
need not consider whether they are properly brought in a
section 2255 proceeding.
Polanco complains that the district court did not
confirm for the jury that certain testimony had been
correctly admitted, but he does not describe how that
omission prejudiced him. Nor can we see how the court's
failure to confirm at the conclusion of trial that certain
evidence had been properly admitted could have prejudiced
Polanco. Had the court determined that it had erred in
admitting the evidence, and then failed to inform the jury of
its decision, obviously Polanco could have been prejudiced by
the jury's consideration of the improperly admitted evidence.
Here, however, the evidence was found to have been properly
admitted, and so the jury's consideration of the evidence was
entirely appropriate and the court's failure to verify that
could not have prejudiced Polanco.
Polanco also claims that the increase in his base
offense level for being a leader and organizer was wrong
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because it was based on the testimony of witnesses hoping to
receive lesser sentences. Thus, Polanco does not actually
challenge the court's finding that Polanco was a leader and
organizer, but essentially assails the credibility of the
witnesses testifying against him. On direct examination,
those witnesses described the nature of their agreement to
cooperate with the government, and Polanco's counsel
thoroughly cross-examined them on that subject, providing the
jury an adequate basis for judging their credibility.
Consequently, we find no merit in this claim of error.
Nor is there merit in Polanco's claim that the
quantity of drugs he allegedly distributed was improperly
based on testimony given at trial. Polanco's only challenge
to that testimony is his bare speculation that it might have
been fabricated. Again, Polanco's counsel vigorously cross-
examined the witnesses in question. Furthermore, at
sentencing his counsel conceded that the presentence report's
statement of the amounts of drugs distributed accurately
reflected their testimony.
Finally, Polanco claims that enhancing his sentence
for obstruction of justice because of his trial testimony was
a violation of his right to testify in his own defense. That
bare allegation is insufficient to state a claim for relief.
The district court determined that Polanco -- who had
testified that he had not been involved in any way in the
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alleged distribution of cocaine -- had committed perjury
during the trial. Polanco does not dispute the district
court's finding before this court. In fact, he practically
confirmed his perjury by asking the district court before
sentencing whether there was "some way that I can collaborate
with the government," complaining that no one had ever asked
him whether he wished to collaborate. Case law makes clear
that a defendant's right to testify on his own behalf does
not include the right to commit perjury, and thus Polanco's
claim must fail. See Nix v. Whiteside, 475 U.S. 157, 173
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(1986) ("Whatever the scope of a constitutional right to
testify, it is elementary that such a right does not extend
to testifying falsely.") (emphasis in original); United
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States v. Grayson, 438 U.S. 41, 54 (1978) ("[t]he right
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guaranteed by law to a defendant is narrowly the right to
testify truthfully in accordance with [his] oath . . . ");
see also United States v. Batista-Polanco, 927 F.2d 14, 22
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(1st Cir. 1991) (the obstruction of justice enhancement for
falsely testifying in one's own defense does not implicate a
constitutional right); United States v. Akitoye, 923 F.2d
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221, 228 (1st Cir. 1991) (the obstruction of justice
enhancement for false trial testimony does not chill a
defendant's exercise of sixth amendment rights).
Finally, we note that, although Polanco was
represented by counsel, he failed to raise the above claims
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in his direct appeal, thereby waiving them unless he shows
cause and prejudice under United States v. Frady, 456 U.S.
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152, 167 (1982). See United States v. Biberfeld, 957 F.2d
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98, 104 (3d Cir. 1992) (the waiver of a section 2255 claim
may be excused where the defendant shows cause and actual
prejudice). Polanco has made no such showing and does not
allege that his attorney rendered him ineffective assistance
of counsel in failing to raise these issues on appeal.
Accordingly, we conclude that summary dismissal of his motion
without an evidentiary hearing was proper.
The judgment of the district court is affirmed.
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