
USCA1 Opinion

	




          May 3, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2176                               VICTOR VEGA-ENCARNACION,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Victor Vega-Encarnacion on brief pro se.            _______________________            Daniel F.  Lopez-Romo, United States  Attorney, Edwin O.  Vazquez,            _____________________                           _________________        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Appellant,  Victor Vega-Encarnacion,                      ___________            was convicted along with a co-defendant, Hector Orlando Cruz-            Rosario, of aiding  and abetting in the distribution  of more            than  5,000  grams of  cocaine in  violation  of 21  U.S.C.              841(a)(1) and 18 U.S.C.    2.  A third  co-defendant, Roberto            Vazquez-Carrera, pled  guilty  prior  to  trial.    The  only            witness to testify at  trial was an undercover agent  for the            DEA, Miguel  Andaluz Baez.   We  affirmed the convictions  of            appellant and Cruz-Rosario on appeal.  United States v. Vega-                                                   _____________    _____            Encarnacion, 914 F.2d 20  (1st Cir. 1990), cert. denied,  111            ___________                                ____________            S. Ct. 1626 (1991).                      Appellant has filed  a petition under  28 U.S.C.               2255  seeking  to  set  aside his  conviction.    He  alleges            ineffective assistance  of counsel.  On the  form provided to            appellant, he specified that counsel (1) had failed to object            to part  of the prosecutor's  closing argument;  and (2)  had            failed to  object  to  the  trial  court's  jury  instruction            regarding  appellant's failure  to testify.   A  third ground            surfaced in the pleadings filed by appellant in the course of            the district court proceedings.  First,  in his memorandum in            support of  the    2255 motion, appellant  merely stated,  in            describing the nature of the defense presented at trial, that            he  "was not permitted to testify on  his own behalf."  Next,            in his  objections to  the report  and recommendation  of the            magistrate  judge, appellant developed  this point by arguing            that counsel's performance was inadequate on the ground  that            counsel  had told appellant  that it  was "not  possible" for            appellant to  take  the  stand.    This,  appellant  averred,            violated his right to testify on his own behalf.  Finally, in            a request  for an evidentiary hearing,  appellant stated that            trial counsel  "erroneously advised [appellant]  that it  was            impossible for him to testify. . . ."                                          I.                                          _                      A full  account of the  facts is  presented in  our            opinion  affirming appellant's  conviction.   We repeat  only            those  facts necessary  for  an understanding  of the  claims            raised in  the   2255  motion.  In  1989, the DEA  and Puerto            Rico   police  officers  began  an  investigation  concerning            suspected drug  dealers.    Andaluz,  the  undercover  agent,            arranged to  purchase five  kilograms of cocaine  for $70,000            from Vazquez-Carrera.   The cocaine was not  delivered at the            first meeting  because Vazquez-Carrera did not  have the keys            to the apartment where the drugs were stored.  However, Cruz-            Rosario met with Andaluz to discuss further arrangements.                      A few  days  later, a  second meeting  was set  up.            Andaluz  and an  informant drove  to the designated  place, a            shopping  center, where  they  were met  by Cruz-Rosario  and            Vazquez-Carrera who arrived in the same automobile.  Vazquez-            Carrera and the informant then left in the informant's car to            pick up the  cocaine.  When they returned, they  drove into a            rear  parking lot of the shopping center.  They were followed            by appellant  in a separate car.   When Andaluz  went over to            the informant's car to look at  the cocaine, he was joined by                                         -3-            appellant who had  been seated  on the sidewalk  next to  the            parking lot.  Andaluz asked appellant if he was with Vazquez-            Carrera and appellant  said that he was;  appellant then told            Andaluz that the  cocaine was in  the back seat  of the  car.            When  they arrived  at  the informant's  car,  they found  it            unlocked  with  the  keys  in  the  ignition.   According  to            Andaluz,  appellant helped him to lock up the car.  Appellant            stated to Andaluz that he  had come himself because  Vazquez-            Carrera did not  know how to do the deal  and that any future            deals would  be done  differently.  Appellant  also responded            affirmatively  when Andaluz asked him if the cocaine was his.            As  the  money  was  about to  change  hands,  appellant  was            arrested.                                         II.                                         __                      To  present  a   successful  claim  of  ineffective            assistance of  counsel,  appellant must  establish that  "the            alleged  deficiencies  in  professional  performance  assumed            unconstitutional  dimensions.  .  .  ."   Barrett  v.  United                                                      _______      ______            States, 965 F.2d 1184,  1193 (1st Cir. 1992).   The benchmark            ______            is  "whether  counsel's  conduct  so  undermined  the  proper            functioning of the adversarial  process that the trial cannot            be relied on as  having produced a just result."   Strickland                                                               __________            v.  Washington,  466  U.S.   668,  686  (1984).    Strickland                __________                                     __________            established   a  two-prong   test  for   determining  whether            counsel's conduct was  so defective as to require reversal of                                         -4-            a  conviction.   A  defendant must  establish that  counsel's            conduct  fell below an  objective standard  of reasonableness            and  that  he  was prejudiced  in  the  sense  that "but  for            counsel's  errors,   the  result   below   would  have   been            different."  See  Murchu v.  United States, 926  F.2d 50,  58                         ___  ______     _____________            (1st  Cir.) (per curiam), cert. denied, 112 S. Ct. 99 (1991).                                      ____________            Because we find that appellant has not established prejudice,            we   need   not  address   the  question   whether  counsel's            performance was ineffective.  See Strickland, 466 U.S. at 697                                          ___ __________            (court  need not  examine  adequacy of  counsel's performance            "[i]f it  is easier  to dispose  of the  . .  . claim  on the            ground of lack of sufficient prejudice").                      1.   The prosecutor's closing argument.   Appellant                           _________________________________            argues that counsel  erred in not objecting  to the following            statements.                           The   evidence    shows   that   the                      informant's  vehicle  and  the  defendant                      [Vega-Encarnacion]  parked  at  the  back                      side  of the shopping center parking lot.                      And  the evidence  shows that  he stayed,                      you remember that he stayed  during [the]                      time that  Roberto goes to the other side                      to  talk with Officer  Andaluz.   And why                      will he stay in that place, near the area                      that the informant's car was and near the                      area that [the] cocaine was.                           You   remember  that   the  evidence                      proves  that  the  informant's   car  was                      unlocked, with a key in the  ignition and                      with the five kilos of the cocaine in the                      back seat.  Are you going to believe that                      Roberto  Vazquez  Carrera  will leave  in                      that area with five kilos of cocaine that                      cost seventy thousand dollars, with a key                                         -5-                      in the  ignition and  the door open.   Of                      course not.   Drug traffickers don't work                      in that way.                      On appeal, appellant argues that these remarks were            improper   on  the  ground  that  they  constituted  personal            expressions of opinion  that appellant's role was  as a look-            out during the transaction.  As for  the reference to the way            drug  dealers  work,   appellant  maintains  that   testimony            concerning drug operations is  the subject of expert opinion.            Appellant   relies   on   cases   in   which  challenges   to            prosecutorial comments were attacked on direct appeal.  In so            doing, appellant misconstrues the nature of the inquiry.  The            test  is not  whether the  prosecutor's  comments constituted            plain error, but whether counsel's failure to object to  them            prejudiced appellant.                      On  this question, we fail to  see any prejudice to            appellant.    The  direct  testimony  of  Andaluz  identified            appellant, based on appellant's  own statements, as a primary            player  in the drug transaction.   Thus, we  can hardly fault            counsel  for failing  to  object to  the characterization  of            appellant  as a look-out -- a less involved role.  Certainly,                            ________            we cannot say that  but for counsel's failure to  object, the            result would have been  different, i.e., that appellant would                                               ____            not have been convicted.                      2.   Jury Instruction.   Appellant's second  ground                           ________________            for relief is  based on  counsel's failure to  object to  the                                         -6-            trial  judge's  "ambiguous" jury  instruction  concerning the            effect  of appellant's failure  to testify.   The trial judge            charged as follows:                           Now,  the  indictment  or   form  of                      charges  against  a   defendant  is   not                      evidence of guilt.  Indeed, the defendant                      is  presumed by the  law to  be innocent.                      The law  does not require a  defendant to                      prove  his  innocence   or  produce   any                      evidence at  all and no inference  may be                      drawn by the  [decision of] defendant not                      to testify.            We first  note that appellant's only reference to this ground            on  appeal is in a description of  the contents of the   2255            petition.   Nowhere does appellant present any argument as to            why  the failure  of counsel  to object  to this  instruction            constitutes ineffective assistance of counsel.                      In   any  event,   the  allegations   of  prejudice            presented below -- (1) that the instruction left the jury "in            the  dark" as to what weight to place on appellant's decision            not to testify; and  (2) that the instruction did  nothing to            prevent the  jury  from  imagining  reasons  for  appellant's            failure to testify in rebuttal to the statements of Andaluz -            - are  not persuasive.   This is  highlighted by  appellant's            argument  set  out  in  his  objections  to  the  report  and            recommendation  of  the  magistrate  judge  that  the  proper            instruction should have stated that                      "under  our  constitution,   he  has   no                      obligation  to testify or  to present any                      other   evidence   because   it  is   the                                         -7-                      prosecution's duty to prove the defendant                      guilty beyond a reasonable doubt."            Perceiving   no  significant   difference  between   the  two            instructions, it also is difficult to perceive any prejudice.                      3.   Right to testify.   Appellant claims  that his                           ________________            attorney deceived him by  leading him to believe that  it was            legally  impossible  for  appellant  to testify  on  his  own            behalf.  He asserts that this claim cannot be resolved in the            absence  of an  evidentiary hearing.   The district  court is            required to hold such a hearing "if the records and  files in            the case, or an  expanded record, cannot conclusively resolve            substantial   issues   of  material   fact,  `and   when  the            allegations made,  if true,  would require relief.'"   United                                                                   ______            States  v. Butt,  731 F.2d  75, 78  (1st Cir.  1984) (quoting            ______     ____            United  States  v.  Fournier, 594  F.2d  276,  279 (1st  Cir.            ______________      ________            1979)).  We therefore  must first determine whether appellant            would be  entitled to  relief if  he proved  his allegations.            Only  if he  would, do  we then  decide whether  the district            court  abused its  discretion in  not holding  an evidentiary            hearing.                      A criminal defendant has a constitutional right  to            testify on his  own behalf.  Rock  v. Arkansas, 483  U.S. 44,                                         ____     ________            51-53 (1987).  This right is personal and cannot be waived by            trial  counsel.  Nichols v. Butler, 953 F.2d 1550, 1552 (11th                             _______    ______            Cir. 1992).                                         -8-                      [I]f defense counsel  never informed  the                      defendant  of the  right to  testify, and                      that the ultimate decision belongs to the                      defendant,  counsel would  have neglected                      the vital  professional responsibility of                      ensuring  that  the defendant's  right to                      testify  is protected and that any waiver                      of that right is knowing and voluntary.            United States v.  Teague, 953  F.2d 1525,  1534 (11th  Cir.),            _____________     ______            cert. denied,  113 S. Ct.  127 (1992).   Teague held  that in            ____________                             ______            such  circumstances,  counsel  has not  provided  "reasonably            effective assistance."  Id.                                    ___                      We  question, however, whether  the bare allegation            that counsel  would not let appellant  testify is sufficient,            without  more, to satisfy the first prong of Strickland.  See                                                         __________   ___            Underwood v.  Clark,  939 F.2d  473, 475-76  (7th Cir.  1991)            _________     _____            (affidavit   of  defendant   stating   only  the   "barebones            assertion" that "[m]y attorney  told me I could  not testify"            insufficient to require an evidentiary hearing; some "greater            particularity  is  necessary").     We  addressed  a  similar            situation  in regard  to allegations that  a guilty  plea was            induced  by  attorney  misrepresentations.   We  stated  that            evidentiary  hearings have been  granted to  defendants "only            when  [such] allegations  were  highly specific  and  usually            accompanied  by some  independent corroboration."   Butt, 731                                                                ____            F.2d at 80 n.5, quoted in  Siciliano v. Vose, 834 F.2d 29, 30                            _________  _________    ____            (1st Cir. 1987).                      Even  assuming that  his counsel's  performance was            constitutionally deficient, appellant  still must satisfy the                                         -9-            second  part  of  the  Strickland  test.    In  this  regard,                                   __________            appellant points out that  the government informant and Cruz-            Rosario   identified   Vazquez-Carrera    as   the    primary            distributor.  Further, appellant  asserts, his name was never            mentioned  during  the  negotiations  for  the  sale  of  the            cocaine.  The only  evidence implicating appellant, he points            out, was  the testimony  of Andaluz  as to the  incriminating            statements allegedly made by appellant to Andaluz.                      Appellant  argues  that  where  the  issue  is  not            whether  a  crime was  committed  but rather  is  whether the            defendant  was the  individual who  committed the  crime, his            testimony  takes on  "`greater  importance.'"   He relies  on            Nichols for this proposition.  However, in Nichols, there was            _______                                    _______            a  real question as to whether the defendant actually was the            person  who perpetrated the crime.   The only  witness to the            robbery in Nichols  had glanced at the robber for less than a                       _______            second  and another witness  had testified  that he,  not the            defendant, had committed the crime.  953 F.2d at 1551.  There            is no question here  that appellant was on  the scene and  he            does not deny that he spoke with Andaluz.                      Nonetheless, he  asserts that he was  prejudiced in            this situation  because "there  was  only one  person in  the            position to  challenge  agent Andaluz's  testimony  --  Vega-            Encarnacion himself."    As  such,  he urges,  the  jury  was            entitled to  hear appellant's  version of  the facts so  that                                         -10-            they could  weigh his credibility against  the credibility of            Andaluz.    Thus,  appellant  concludes  that   prejudice  is            established  and that  "the government  is wrong  in claiming            that [his] testimony could not [have] changed the outcome  of            the trial."                      Although appellant's  claim that he has  a right to            testify  which  cannot  be  waived  by  his  counsel  is  one            cognizable  under     2255,  his allegations  concerning  the            prejudice  resulting  from  counsel's  supposedly  inadequate            representation  are  nothing more  than  "conclusions without            specific  and detailed supporting facts."  See Butt, 731 F.2d                                                       ___ ____            at 77.   In this situation,  we need not treat  them as true.            See Porcaro v. United States, 784 F.2d 38, 40 (1st Cir.) (per            ___ _______    _____________            curiam),  cert. denied,  479 U.S.  916 (1986).   In  essence,                      ____________            appellant's argument regarding  prejudice boils  down to  the            bare assertion that had appellant been allowed to testify, he            would have  adequately rebutted and  explained the statements            made  by  Andaluz.    What  is  lacking,  obviously,  is  any            indication of exactly what  appellant's testimony would  have            been.    Indeed, there  is no  getting  around the  fact that            appellant  could  have  supplied   this  information  to  the            district  court when  he filed  his    2255 motion.   In  the            absence  of this  kind of  specificity, it  is impossible  to            determine that, but for  counsel's alleged errors, the result            below would have been different.                                         -11-                      We do not believe  that in this situation a    2255            movant can  just  declare that  because  he was  entitled  to            testify,  a hearing  should have  been held.   "Some  greater            particularity is necessary . . . to give the claim sufficient            credibility  to warrant  a  further  investment  of  judicial            resources in determining the truth of the claim."  Underwood,                                                               _________            939 F.2d at  476.  As appellant has  not demonstrated that he            is entitled to relief by providing the requisite specificity,            the  district  court  did not  abuse  its  discretion  in not            holding an evidentiary hearing.                      For  the  foregoing reasons,  the  judgment of  the            district court is affirmed.                              ________                                         -12-
