
USCA1 Opinion

	




        December 13, 1995       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1634                                   PETER A. LEBON,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                        FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Peter A. Lebon on brief pro se.            ______________            Donald  K. Stern, United  States Attorney,  and Christopher Bator,            ________________                                _________________        Assistant U.S. Attorney, on brief for respondent.                                 ____________________                                 ____________________                 Per Curiam.  We  have carefully reviewed the  record and                 __________            affirm the  district court's dismissal of  appellant's   2255            petition without an evidentiary hearing.                 1.  Counsel's failure  to subpoena Tina Pina's telephone            records was  a permissible  strategic decision which  did not            constitute ineffective assistance of  counsel.  That Tina had            left  in   place  a  block  preventing   her  from  receiving            appellant's calls would have undercut counsel's spurned woman            strategy and would not have been particularly probative since            the jury might instead have concluded  that the apology calls            occurred  at a  later  time and  that  Tina had  simply  been            mistaken about the date.                  2.    Any  error  in  introducing  the  nature  of   the            underlying felony  conviction was harmless in  view of Stefan            Pina's testimony concerning  defendant's access  to guns  and            motive to possess one.                   3.  For the reasons stated in the district court's March            30,  1995 and  May 23,  1995 opinions, appellant's  claims of            prosecutorial misconduct do not warrant habeas relief.                 Affirmed.                 ________                                         -2-
