
USCA1 Opinion

	




        March 18, 1996          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1671                              ORLANDO ESPINOSA-SANCHEZ,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Orlando Espinosa-Sanchez on brief pro se.            ________________________            Guillermo  Gil, United  States Attorney,  Rosa E.  Rodriguez-Velez            ______________                            ________________________        and Nelson Perez-Sosa, Assistant United States Attorneys, on brief for            _________________        appellee.                                 ____________________                                 ____________________                      Per Curiam.   After carefully reviewing the  record                      __________            and  the  parties' briefs,  we  affirm  the  judgment of  the            district  court for  essentially  the reasons  stated in  its            Opinion and Order.  We add the following comments.                      1.  The district  court was not required to  hold a            hearing  on  appellant's  claim that  his  attorney  provided            ineffective assistance by failing to call as witnesses two of            appellant's codefendants.  Conspicuously absent  from both of            the affidavits  of these  codefendants is any  statement that            either  codefendant   would  have  testified   on  behalf  of            appellant.   Also missing are averments  that appellant never            knew  about the cocaine on board the SHEME and that appellant            never  had  been  told  about  the  drugs.    Indeed, neither            affidavit is  inconsistent with the government's  position at            trial that  appellant was part  of the conspiracy  to possess            with the intent to distribute the cocaine.  Thus, even taking            the  rest of the allegations  in the affidavits  as true, the            conclusions  appellant draws  from these facts  are basically            "self-interested  characterizations."   See United  States v.                                                    ___ ______________            McGill, 11 F.3d 223, 225 (1st Cir. 1993) (in deciding whether            ______            to  hold   a  hearing,  the   district  court  must   take  a            petitioner's factual  averments as  true but need  not credit            "conclusory  allegations,  self-interested  characterizations            [or] discredited inventions").                                         -2-                      Finally,  the case  upon which  appellant primarily            relies, United  States  v. Yizar,  956  F.2d 230  (11th  Cir.                    ______________     _____            1992), is not to the contrary.  In Yizar, there was no doubt,                                               _____            unlike  here, that  the  codefendant actually  had said  that            defendant  was innocent.    Here, in  contrast,  there is  no            independent corroboration that Estupinan  or Passos-Paternina            possessed exculpatory  evidence or that appellant  even named            them as  potential witnesses.   Moreover, the  information in            their  affidavits hardly  amounts  to a  direct statement  of            appellant's innocence.                      2.  Appellant's  claim that his  attorney prevented            him from taking the stand is supported by only his allegation            that  his attorney  led  him to  believe  that he  could  not            testify.  This  is insufficent, without more,  to require the            district court to hold an evidentiary hearing.   Siciliano v.                                                             _________            Vose,  834 F.2d  29, 31  (1st Cir.  1987) (an  affidavit that            ____            states  only  that  counsel  refused to  allow  defendant  to            testify  on  his  own  behalf is  insufficient  to  establish            defendant's  entitlement to  a hearing  on his  habeas corpus            petition).  See also Underwood v. Clark, 939 F.2d 473, 475-76                        ___ ____ _________    _____            (7th Cir.  1991) (a "barebones assertion"  that a defendant's            attorney would not let him testify is "too facile a tactic to            be  allowed  to  succeed";  greater  particularity  and  some            substantiation are necessary).                                         -3-                      Again,  the  cases upon  which  appellant primarily            relies  do not support his  position.  In  one, United States                                                            _____________            v.Walker, 772  F.2d 1172 (5th  Cir. 1985) (a  direct appeal),              ______            the defendant had told his attorney that he wished to testify            and the  attorney had  filed a motion  to reopen the  case to            allow defendant to take the stand.  The court determined that            the  trial court  had abused  its discretion  in  denying the            motion.  Id. at 1176, 1185.  In the other case, United States                     ___                                    _____________            v.  Butts,  630  F.Supp. 1145  (D.  Me.  1986)  (a new  trial                _____            motion), there  was independent evidence  -- courtroom scenes            and  counsel's testimony  -- that defendant  consistently had            demanded to  testify on  his own  behalf.  Id.  at 1146.   As                                                       ___            noted  above,  there  is   no  independent  corroboration  of            appellant's  allegation that  his attorney  told him  that he            could not testify.                      3.   The remainder  of appellant's claims  were not            raised below and therefore will  not be addressed on  appeal.            See Knight v.  United States, 37 F.3d 769,  772 n.2 (1st Cir.            ___ ______     _____________            1994).                      The judgment of the district court is affirmed.                                                              ________                                         -4-
