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                    [NOT FOR PUBLICATION]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-
