

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 97-1725 

                       RENALDO PLEDGER,

                    Petitioner, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                    Respondent, Appellee.

                                         

No. 97-2119 

                         SEAN DIXON,

                    Petitioner, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                    Respondent, Appellee.

                                         

No. 97-2245 

                      EDWIN CARMICHAEL,

                    Petitioner, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                    Respondent, Appellee.

                                         

No. 97-2297 

                      STEVEN WADLINGTON,

                    Petitioner, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                    Respondent, Appellee.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Walter Jay Skinner, Senior U.S. District Judge]                                                                    

                                         

                            Before

                    Torruella, Chief Judge,                                                      
              Selya and Boudin, Circuit Judges.                                                          

                                         

Renaldo  Pledger,  Edwin  Carmichael   and  Steven  Wadlington  on                                                                          
memoranda pro se.
Sean Dixon on brief pro se.                      
Donald K.  Stern, United States Attorney,  and Kevin J.  Cloherty,                                                                             
Assistant United  States Attorney,  on brief for  appellee in  No. 97-
2119.

                                         

                       February 5, 1988
                                         

          Per Curiam.    In   a   joint   trial,  petitioners                                

Renaldo  Pledger,  Sean Dixon,  Edwin  Carmichael  and Steven

Wadlington were each convicted of multiple  offenses stemming

from  their involvement  in  a large-scale  drug distribution

ring  in Boston, Massachusetts.  On direct appeal, this court

affirmed after rejecting  a multitude of challenges  to their

convictions and sentences.  See United States v. Whiting,  28                                                                    

F.3d  1296 (1st  Cir. 1994).    Petitioners thereafter  filed

separate motions  for habeas relief  under 28 U.S.C.    2255,

advancing a  plethora of new  claims.  In each  instance, the

district  court denied relief  and then  declined to  issue a

certificate   of  appealability  (CAP).    See  28  U.S.C.                                                             

2253(c)(1).  Petitioners  have now submitted CAP  requests to

this court.  

     In order to qualify for  a CAP, a habeas petitioner must

make "a substantial showing of the denial of a constitutional

right," id.   2253(c)(2)--i.e., a showing that the issues are                       

debatable among reasonable jurists, that a court could decide                                                                  

them in  a different  fashion, or that  they are  adequate to

deserve encouragement to proceed further, see, e.g., Barefoot                                                                         

v.  Estelle,  463 U.S.  880,  893  n.4  (1983).   Because  we                       

conclude  that none  of the  petitioners  has satisfied  this

standard, the CAP applications will be denied and the appeals

terminated.  

     Petitioners have presented  an assortment of overlapping

contentions, which we  have divided into two  categories.  We

will  first  address  a  pair  of  joint  challenges  to  the

convictions and sentences, and will then consider a number of

individual claims.  Because most of the claims either consist

of,  or  are  accompanied   by,  complaints  of   ineffective

assistance  of  counsel  (IAC), and  because  they  all prove

unavailing  on the  merits,  we need  not  pause to  consider

whether they each  are cognizable  in the  habeas context  or

whether any are subject to procedural default.

                         Joint Claims                                                 

     1.   All four  petitioners contend  that the  government

withheld  notes of  witness interviews  in  violation of  its

obligations under Brady v. Maryland, 373 U.S. 83  (1963), and                                               

the  Jencks Act,  18 U.S.C.    3500.   It is  undisputed that

several government  witnesses engaged in  debriefing sessions

prior to  trial at  which prosecutor  Kelly  and DEA  special

agent Murphy took handwritten notes.  During trial, the court

rejected  defense requests  for disclosure of  such material.

Some  time later, petitioners gained possession of notes that

the prosecutor had  taken of one  interview with the  witness

Anser   Adams.     Insisting  that   those  notes   contained

exculpatory  and  impeachment  material  and  were  otherwise

discoverable under the Jencks Act, petitioners argue that the

government was  remiss in not  turning over all notes  of all

                             -4-

witness interviews.  The district court justifiably concluded

otherwise. 

     The  Jencks Act  claim is entirely  unavailing.   As the

notes were never  adopted by the witness and  did not involve

grand  jury testimony, they  would fall within  the statute's

purview  only  if  they provided  a  "substantially verbatim"

account of what had been said.  18 U.S.C.   3500(e)(2).  Such

an  account must  reflect the  witness' own words  "fully and

without distortion."  Palermo v. United States, 360 U.S. 343,                                                          

352  (1959); accord,  e.g., United  States  v. Neal,  36 F.3d                                                               

1190,  1198 (1st  Cir. 1994),  cert. denied,  117 S.  Ct. 519                                                       

(1996); United States v. Newton,  891 F.2d 944, 954 (1st Cir.                                           

1989).   The  notes  here  did  not do  so.    Instead,  they

evidenced "substantial  selection of material"  and contained

the  prosecutor's  "own interpretations  or  impressions" and

were thus "not to be produced."  Palermo, 360 U.S. at 352-53;                                                    

accord, e.g., United  States v. Bennett, 75 F.3d  40, 47 (1st                                                   

Cir.) (reviewing such a determination for clear error), cert.                                                                         

denied, 117 S. Ct. 130 (1996).                  

     Nor have petitioners  explained how the notes  were both

"favorable" and "material"  to the defense, United  States v.                                                                      

Brimage, 115 F.3d 73, 79 (1st Cir.), cert. denied, 118 S. Ct.                                                             

321  (1997),  such   that  the   withholding  thereof   might

constitute a Brady  violation.  It  suffices here to  observe                              

that  evidence  is  "material"  if  there  is  "a  reasonable

                             -5-

probability  that, had  the evidence  been  disclosed to  the

defense,  the  result  of  the  proceeding  would  have  been

different."   United States v.  Blais, 98 F.3d 647,  651 (1st                                                 

Cir. 1996),  cert. denied,  117 S.  Ct. 1000  (1997) (quoting                                     

United States  v. Bagley, 473  U.S. 667, 682  (1985)); accord                                                                         

Kyles v. Whitley,  514 U.S. 419,  432-41 (1995).   Especially                            

given the  amount of Brady  and Jencks Act material  that was                                      

disclosed and the extent  to which the witnesses in  question

were  impeached  at   trial,  petitioners  have  "failed   to

articulate  any   theory  demonstrating  such   a  reasonable

probability."  Blais, 98 F.3d  at 651; accord, e.g., Brimage,                                                                        

115  F.3d at  79 (finding evidence  to be  non-material after

noting degree to  which witness' character had  been "sullied

in cross-examination").  Moreover, the weight of the evidence

against  each of  these  petitioners--which  we described  at

length in the unpublished portion of our earlier opinion, see                                                                         

Whiting, supra, slip  op. at 55-57 (Dixon),  61-62 (Pledger),                          

66-68  (Carmichael),  68-70  (Wadlington)--would  render  any

Brady  violation in this regard harmless, see, e.g., Bennett,                                                                        

75 F.3d at 47.

     We  likewise disagree that the court erred in dismissing

these claims  without convening  a hearing  or examining  the

remaining witness  notes in camera.   A habeas  petitioner is                                              

not  entitled to an evidentiary  hearing where, as here, "his

allegations are 'vague, conclusory, or palpably incredible.'"

                             -6-

David v. United States,     F.3d    ,    , 1998 WL 21848,  at                                  

*6 (1st Cir. 1998) (quoting  Machibroda v. United States, 368                                                                    

U.S. 487, 495 (1962)); accord, e.g., United States v. McGill,                                                                        

11  F.3d   223,  225-26  (1st   Cir.  1993).     And  because

petitioners'  claims were  unsupported by  the  set of  notes

actually  produced, we  cannot  fault  the  district  court's

decision to forgo examination of the others.   Compare United                                                                         

States  v.  Strahl,  590  F.2d  10,  14-15  (1st  Cir.  1978)                              

(cautioning against sole reliance  on prosecutor's assurances

that interview notes were not covered by Jencks Act).1                                                                   1

     2.  All  petitioners but Pledger challenge  the quantity

of  drugs  for  which  they  were  each  held  accountable at

sentencing.  They  contend, inter alia, that  the court erred                                                  

by  failing to make  individualized findings in  this regard.

They  also  complain  of counsel's  failure  to  pursue these

matters, particularly in  light of a clarifying  amendment to

the guidelines  that was adopted  during the pendency  of the

appeal.  We perceive no  error; indeed, we rejected a related

set of arguments on direct appeal.

     In order  to calculate the  quantity of drugs  for which

each  petitioner  was  responsible, so  as  to  determine the

applicable base  offense level, the sentencing  court engaged

                                                    

   1   Our rejection  of the Brady/Jencks  Act claims  on the               1                              
merits disposes of  the subsidiary IAC  claims.  The  further
suggestion in  this regard  that the  prosecution engaged  in
intentional misconduct is totally without record support.

                             -7-

in   a  two-step  process.    It  first  estimated  that  the

organization as  a whole  had distributed  an average  of two

kilograms of cocaine per week during its existence.   Relying

on the "relevant  conduct" provision in U.S.S.G.    1B1.3, it

then multiplied this figure by  the number of weeks that each

petitioner  had been involved.  On direct appeal, petitioners

challenged  the  two-kilograms-per-week  estimate, contending

that it lacked evidentiary  support, see Whiting, 28 F.3d  at                                                            

1303-05;  we disagreed, describing  the court's finding  as a

"conservative  estimate [that] left a fair margin of safety,"

id. at 1305.   Petitioners now argue that the court  erred by               

attributing  that estimate  to  each  of  them  without  more

particularized   inquiries   into    what   quantities   were

foreseeable and  were within  the scope  of their  respective

agreements.

     Petitioners' precise complaint is difficult to identify.

To the  extent they are alleging that the court automatically

saddled each of  them with the full amount  of drugs involved

in the conspiracy  without further inquiry,  thereby applying

an  erroneous  legal standard,  they  are  mistaken.   As  we

explained  in  the  earlier appeal,  petitioners  "were  held

responsible  at  sentencing   for  'drugs  [they]  personally

handled  or  anticipated handling,  and,  under  the relevant

conduct  rubric, for drugs  involved in additional  acts that                                                                         

were reasonably foreseeable  by [them] and were  committed in                                                                         

                             -8-

furtherance  of the conspiracy.'"   Whiting, 28  F.3d at 1304                                                       

(emphasis added) (quoting United States v. Sepulveda, 15 F.3d                                                                

1161,  1197  (1st Cir.  1993)).2    To  the extent  they  are                                           2

alleging  that the  court's  findings of  foreseeability were

unsupported  by the evidence (or that  counsel should have so

contended), they fare  no better.   Three of the  petitioners

(Pledger,  Dixon and Wadlington)  did voice such  a challenge

below,  and  Wadlington  pursued it  on  appeal--all  without

success.   See  Whiting,  supra,  slip op.  at  72-74.   More                                           

important, there has been no showing how the court's findings

in this regard might possibly have constituted clear error.

     Petitioners'  reliance on the  1992 revision of    1B1.3

(amendment 439) likewise proves unavailing.   It is true that

this  amendment was clarifying in nature  and thus could have

been invoked on  direct appeal.  See, e.g.,  United States v.                                                                      

LaCroix, 28 F.3d 223, 227  n.4 (1st Cir. 1994); United States                                                                         

v.  Carrozza, 4 F.3d 70, 74 n.2 (1st Cir. 1993).  Yet we fail                        

to see how  petitioners would have  benefited from doing  so,

much less  how their  attorneys can be  thought derelict  for

having failed  to do so.   Both the  1990 version of    1B1.3

(which  was applied  at  sentencing)  and  the  1992  version

                                                    

   2   The presentence  reports applied  the same  standard--               2
stating  that each petitioner was being "held accountable for
the drugs sold by the enterprise, that is, for the conduct of
others  in  furtherance  of  the  execution  of  the  jointly
undertaken conspiracy that was reasonably foreseeable by this
defendant, during the time of his involvement in the criminal
enterprise." 

                             -9-

required that  relevant conduct be  "reasonably foreseeable."

And both required  that it be "in furtherance  of the jointly

undertaken  criminal activity."   As here relevant,  what the

1992 amendment did was elaborate  on this latter criterion by

explaining that "the court must first determine the  scope of

the  criminal  activity  the particular  defendant  agreed to

jointly  undertake (i.e., the  scope of the  specific conduct                                    

and  objectives  embraced  by  the  defendant's  agreement)."

U.S.S.G.   1B1.3, comment. (n.2) (1992).  

     Yet  this merely fleshed  out the  preexisting standard.

The  earlier version likewise  had referred to  conduct being

"within  the  scope of  the  defendant's agreement."    See                                                                         

1B1.3, comment. (n.1) (1990).  Prior to the amendment, we had

explained that  "the measure of a  defendant's accountability

for drug transactions in which he was not personally involved

is usually congruent with the scope of his agreement with the

other  participants  in  the  criminal  enterprise."   United                                                                         

States v. Garcia, 954  F.2d 12, 16 (1st Cir. 1992).   We have                            

since  indicated  that  "application  note  2  [of  the  1992

amendment], read as a whole,  appears to use 'in furtherance'

and 'within the scope' interchangeably."  LaCroix, 28 F.3d at                                                             

227 n.5.  Most important, petitioners have offered no factual

support for the  assertion that their colleagues'  drug sales

"were  outside the scope  of [petitioners'] agreement[s], or,

put another way, that those  transactions were other than  in

                             -10-

furtherance  of the  jointly  undertaken criminal  activity."

Id. at 228.3                       3               

                      Individual Claims                                                   

     1.  Wadlington  was convicted, among other  offenses, of

possessing  an unregistered shotgun in violation of 26 U.S.C.

   5861(d).  The  statutory definition of  "firearm" required

proof that the shotgun possessed two characteristics: that it

had a  barrel length of  less than  18 inches, or  an overall

length of less than 24 inches, and  that it could fire (or be

restored to fire) shotgun shells.  In its charge to the jury,

the court inadvertently omitted this definition--an oversight

that  neither  side  brought to  its  attention.   Wadlington

raised  the  matter  on direct  appeal  but  without success.

Subjecting the issue to plain-error scrutiny due to  the lack

of objection below, we  held that the error had  not caused a

"miscarriage of justice" or seriously affected "the fairness,

integrity or  public  reputation  of  judicial  proceedings."

Whiting, 28 F.3d at 1309 (quoting United States v. Olano, 507                                                                    

U.S. 725,  736 (1993)).   In so concluding, we  observed that

                                                    

   3 A  trio of  subsidiary claims  likewise  miss the  mark.               3
Petitioners contend that the court  failed to notify them  of
its  tentative findings before  imposing sentence,  as called
for by  U.S.S.G.    6A1.3(b) (1990).    The record  indicates
otherwise.  They assert that the drug-quantity information on
which the court relied was inherently unreliable; we rejected
an identical claim on direct appeal.  See Whiting, 28 F.3d at                                                             
1305.   And  petitioners  insist  that  counsel  should  have
requested an evidentiary hearing  prior to sentencing;  under
the circumstances, we find neither substandard performance by
counsel nor prejudice resulting therefrom. 

                             -11-

the   "undisputed  evidence"   showed   that  the   statutory

definition had  been met--meaning  that there  was "no  risk"

that  the  omission had  "resulted  in the  conviction  of an

innocent man."  Id.                               

     Wadlington now raises the same  issue by means of an IAC

claim,  complaining of  counsel's failure  to  object to  the

omission.  An IAC claim  requires a showing of both deficient

performance and prejudice.   The Supreme Court  has described

the  prejudice element as  follows: "The defendant  must show

that   there  is  a  reasonable  probability  that,  but  for

counsel's unprofessional errors, the result of the proceeding

would  have been  different.  A  reasonable probability  is a

probability  sufficient   to  undermine  confidence   in  the

outcome."   Strickland  v.  Washington,  466  U.S.  668,  694                                                  

(1984).      No   such  reasonable   probability   has   been

demonstrated; to the contrary, as we earlier concluded, it is

"clear that  the jury  would readily  have  convicted" had  a

proper instruction been given.  Whiting, 28 F.3d at 1309.                                                   

     2.   Dixon  complains  of  improper  advice  from  trial

counsel.  Specifically,  he contends that he  wished to plead

guilty   to   his  substantive   distribution   charge  while

proceeding  to  trial  on  his  conspiracy  charge,  but  was

mistakenly  informed  he  could  not  do  so.     Since  this

allegation is presented in purely conclusory  form, dismissal

was appropriate.  See David,     F.3d at    , 1998 WL  at *6.                                       

                             -12-

Moreover, even if this allegation were true, Dixon has failed

to  explain,  and we  are  unable  to  perceive, how  he  was

prejudiced.  The indictment charged (and the evidence showed)

that his distribution offense was committed in furtherance of

the conspiracy.   As a  result, a  guilty plea to  the former

would only have augmented the proof of his involvement in the

latter.  Nor would there  have been any discernible effect on

Dixon's  sentence;   the   considerable   evidence   of   his

participation in the  conspiracy meant that,  even if he  had

been acquitted on the conspiracy count,  the relevant-conduct

provision might well have yielded the same outcome.

     3.   Wadlington criticizes his attorney for advising him

not to take the witness  stand.  Yet when "[u]naccompanied by

coercion,  legal advice concerning  exercise of the  right to

testify  infringes no right ... but simply discharges defense

counsel's  ethical responsibility to  the accused."   Lema v.                                                                      

United States, 987 F.2d 48, 52 (1st Cir. 1993); accord, e.g.,                                                                        

Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir. 1996).                                      

Wadlington  has made  no allegation  of  coercion and,  given

Wadlington's criminal history, counsel's advice can hardly be

called into question.

     4.   Carmichael argues that  his attorney was  remiss in

effectively  abandoning a  pretrial  motion  for  a  bill  of

particulars  concerning his money  laundering charge.   As he

notes, we  declined  on direct  appeal  to address  an  issue

                             -13-

involving  that  motion  because of  counsel's  action.   See                                                                         

Whiting, slip op. at 66.  Yet no prejudice thereby ensued; we                   

went on to observe that "[h]ad counsel properly preserved the

issue,  the  government's  provision  of  the  Western  Union

transfers would be sufficient to avoid any actual surprise or

prejudice."   Id.  Carmichael's more general complaints about                             

the extent of  preparation performed by counsel  are likewise

unavailing.

     5.  Pledger objects to the  performance of his appellate

counsel.   Specifically,  he argues  that  counsel failed  to

pursue a  claim that the  process of selecting  counties from

which the petit  jury pool was chosen operated  in a racially

discriminatory manner.  Yet the determination of which issues

have  the best  chance  of  succeeding  on  appeal  obviously

entails  the exercise  of  professional  judgment.   Judicial

scrutiny  thereof "must  be highly  deferential," Strickland,                                                                        

466 U.S.  at 689--particularly where, as here, there has been

no  showing that  the  claim  has any  colorable  merit.   No

ineffective assistance has been demonstrated.4                                                         4

     6.   Pledger challenges the district court's alternative

holding  that his petition was time-barred under AEDPA's one-

year statute of  limitations.  He contends  that the "mailbox

                                                    

   4   Several  of  the other  petitioners  also complain  of               4
counsel's failure to pursue certain  claims on appeal.  As we
have determined each of those underlying claims to be without
merit,  the attorneys'  conduct  in  this  regard  cannot  be
faulted.

                             -14-

rule" governing the timing of a notice of appeal filed by  an

inmate confined in  an institution, see Houston  v. Lack, 487                                                                    

U.S. 266 (1988); Fed. R.  App. P. 4(c), should likewise apply

to  a  habeas petition  filed  by  such  an inmate.    Having

rejected his  various  claims  on  the merits,  we  need  not

address this  argument.   Pledger's further  contention--that

AEDPA  is  inapplicable   whenever  the  underlying  criminal

conviction  preceded its effective date, even when the habeas

petition  was filed thereafter--is  meritless.  See  Lindh v.                                                                      

Murphy, 117 S. Ct. 2059 (1997).                  

                          Conclusion                                                

     We need go no further.5  For these reasons, we share the                                       5

district  court's assessment that none of the petitioners has

made a substantial showing of the denial of  a constitutional

right.  Their CAP applications are therefore denied.

     The   applications   of  petitioners   Pledger,   Dixon,                                                                         

Carmichael and Wadlington for a certificate  of appealability                                                                         

are each denied, and their respective appeals are terminated.                                                                         

                                                    

   5   All claims not  mentioned herein have  been considered               5
and rejected.  None requires comment.

                             -15-
