
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
