
USCA1 Opinion

	




          March 15, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2054                                  ANDRE LOPEZ POLANCO,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Andre Lopez Polanco on brief pro se.            ___________________            Richard S. Cohen,  United States Attorney, Margaret D.  McGaughey,            ________________                           ______________________        Assistant United States  Attorney, and Thimi R. Mina, Assistant United                                               _____________        States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Andre Lopez Polanco  was convicted of                      __________            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,                                                _______    _____________            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,                                          ___  ________________    _____            441  F.2d 395,  396 (1st  Cir. 1971)  (per curiam);  Aubut v.                                                                 _____            Maine,  431 F.2d 688, 689 (1st Cir. 1970).  Because Polanco's            _____            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                          _________________________________                      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                     _________________    ________                                         -3-            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                                                     _______            396.  This is so even  where the petitioner is proceeding pro                                         -4-            se.  Id.  Because Polanco did not provide any factual details                 ___            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                          ________________                      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                                         -5-            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                                         -6-            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                               ________    _________            (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                            _______                                ______            States  v. Grayson,  438  U.S. 41,  54  (1978) ("[t]he  right            ______     _______            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            _______________________     _______________            (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                                    ______________     _______            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                                         -7-            in his direct  appeal, thereby waiving  them unless he  shows            cause  and prejudice under  United States v.  Frady, 456 U.S.                                        _____________     _____            152,  167 (1982).  See  United States v.  Biberfeld, 957 F.2d                               __________________     _________            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.                                                            ________                                         -8-
