                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS         October 9, 2003
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-20476
                          Summary Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

ISIDRO ARAUJO, also known as Wilfredo Hernandez,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-01-CV-1023
                      USDC No. H-98-CR-78-1
                       --------------------

Before BARKSDALE, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

     Isidro Araujo, a federal prisoner (# 79059-079), appeals

from the district court’s denial of his 28 U.S.C. § 2255 motion

to vacate his convictions and sentences for conspiracy to possess

with intent to distribute more than five kilograms of cocaine and

possession of more than five kilograms of cocaine with intent to

distribute.    Araujo was granted a certificate of appealability as

to his claim that his trial attorney performed ineffectively by




     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 02-20476
                                 -2-

denying Araujo his constitutional right to testify on his own

behalf.

       Araujo has asserted that, although counsel initially told

him that he could testify at trial and that he would prepare him

to do so, and although Araujo had told counsel every day of trial

that he wanted to testify, counsel ultimately told him not to

worry about testifying and rested the defense’s case without

calling Araujo to the stand.    Araujo, a citizen of the Dominican

Republic who at the time of trial had been in the United States

for only six years, has asserted that he was not aware that his

right to testify was a constitutional one and that he did not

know that he could insist on testifying despite counsel’s

strategic decision that he not do so.      Araujo submitted a sworn

declaration in which he attested to these facts.     The Government

did not submit an affidavit or declaration from counsel.

       To prevail on a claim of ineffective assistance of counsel,

a movant must show (1) that his counsel’s performance was

deficient in that it fell below an objective standard of

reasonableness and (2) that the deficient performance prejudiced

his defense.    Strickland, 466 U.S. at 689-94.    When assessing

whether an attorney’s performance was deficient, the court “must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.”      Id. at

689.    To show Strickland prejudice, a movant must demonstrate

that counsel’s errors were so serious as to “render[ ] the result

of the trial unreliable or the proceeding fundamentally unfair.”

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).      A failure to
                             No. 02-20476
                                  -3-

establish either deficient performance or prejudice defeats the

claim.   Strickland, 466 U.S. at 697.

     A defendant’s right to testify is a fundamental

constitutional one and is personal to him.    See Rock v. Arkansas,

483 U.S. 44, 49-52 (1987).    A waiver of this right must be

knowing and voluntary.    Emery v. Johnson, 139 F.3d 191, 198

(5th Cir. 1997).

     When a defendant argues that his attorney interfered with

his right to testify, this court applies the Strickland standard

to ineffectiveness claims concerning the right to testify.      See

United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001); Sayre

v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001) (28 U.S.C. § 2254

case).   Although under the Strickland ineffective-assistance

standard “‘the decision whether to put a Defendant on the stand

is a ‘judgment call’ which should not easily be condemned with

the benefit of hindsight,’ . . . it cannot be permissible trial

strategy, regardless of its merits otherwise, for counsel to

override the ultimate decision of a defendant to testify contrary

to his advice.”    United States v. Mullins, 315 F.3d 449, 453 (5th

Cir. 2002) (citation omitted).    Araujo’s failure to stand up in

court and to insist on testifying is not dispositive of the issue

whether he acquiesced in his attorney’s decision that he not

testify.   See id. at 455 (“We resist the suggestion that we ought

to insist that a defendant directly address the court at the pain

of waiver to assert his right to testify when his counsel will

not abide his decision.”).
                           No. 02-20476
                                -4-

     Because Araujo filed a sworn declaration asserting that

counsel effectively deprived him of his right testify and because

the Government did not file any evidentiary materials in

response, it is arguable that the district court erred in

concluding, without further developing the facts, that Araujo’s

failure to testify was “more likely” the product of counsel’s

persuasion that such was a better strategy.     See United States v.

Martinez, 181 F.3d 627, 628 (5th Cir. 1999) (observing that this

court has not yet decided what degree of substantiation is

necessary to trigger an evidentiary hearing in a 28 U.S.C. § 2255

right-to-testify claim).

     Even if Araujo could show that counsel performed deficiently

under Strickland by effectively denying Araujo his right to

testify, Araujo still must establish that the deficient

performance prejudiced his defense.   Mullins, 315 F.3d at 456.

Araujo has not succeeded in making this showing.    In his sworn

declaration, Araujo asserted that he would have testified that he

knew nothing about the 9.5 kilograms of cocaine that he and a

codefendant, Delgado, retrieved from the apartment that Araujo

had sub-leased to a third man, Ramiro Guerrero, until he and

Delgado entered the apartment minutes before.    During trial

Araujo had attempted to convince the jury that agents had

misidentified him as the man bringing the cocaine into the

apartment earlier that day; on cross-examination of Government

agents, Araujo’s counsel tried to raise the possibility that the

man agents had seen was in fact Guerrero.
                          No. 02-20476
                               -5-

     The evidence offered by the Government showed that, when

apprehended outside the apartment in the early evening of

February 11, 1998, Delgado was carrying the 9.5 kilograms of

cocaine and Araujo was with him.   Araujo told an arresting

officer that the cocaine belonged to a man named “Ramiro,” who

had asked him to pick it up.   At that time Araujo also offered to

give information about narcotics traffickers and people involved

in money-laundering if the Assistant United States Attorney could

guarantee his release.

     In his sworn declaration, Araujo asserted that, if he had

been called to the stand, he would have testified as follows:    On

February 11, 1998, Araujo had not been at the apartment prior to

the time he and Delgado had been stopped by the police, but

instead had been at his new house all day; Guerrero called him

that afternoon and told him that a family emergency required him

immediately to vacate the apartment and return to the Dominican

Republic; Guerrero asked Araujo to meet his friend Delgado so

that Araujo and Delgado could together remove Guerrero’s

belongings from the apartment; although Araujo thought Delgado

would have a truck for moving the items, he was surprised to see

Delgado was driving a Honda Accord; and as soon as the two men

entered the apartment, Delgado, who apparently had never been

there before, asked Araujo where the air-conditioning vent was.

(The cocaine was apparently stored in the vent.)   Araujo stated

that until that moment he did not know that drugs were in the

apartment and that, had he known Delgado was going to pick up

drugs, he would have called the police.
                           No. 02-20476
                                -6-

     It is true that this proposed testimony would have been the

only trial evidence to support affirmatively the defense theory

that Araujo had not been present at the apartment prior to the

early evening of February 11, 1998.   Araujo did not explicitly

dispute, however, the post-arrest statements that had been

attributed to him by an arresting officer.    Those statements were

in conflict with Delgado’s proposed testimony that he did not

know the drugs were at the apartment.     Moreover, although Araujo

stated in his sworn declaration that he would have called the

police had he known cocaine was in the apartment, he does not

explain why did not in fact do so when he realized why Delgado

had taken him there.   In short, aspects of Araujo’s proposed

testimony appear incredible and would have been subject to

vigorous and, in all likelihood, damaging cross-examination.       We

accordingly conclude that, even if it is assumed arguendo that

Araujo has demonstrated that trial counsel performed deficiently

by denying him his right to testify, Araujo has not demonstrated

that this attorney error prejudiced him under Strickland.     We

thus AFFIRM the judgment of the district court.

     AFFIRMED.
