
USCA1 Opinion

	




        October 8, 1992         [NOT FOR PUBLICATION]                                 ____________________        No. 92-1276                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  DANIEL J. DONLON,                                Plaintiff, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Daniel J. Donlon on brief pro se.            ________________            Jeffrey R.  Howard, United  States Attorney, and  Peter E.  Papps,            __________________                                _______________        First Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.      We  affirm the  judgment  of  the                      ___________            district  court denying appellant's  petition to  vacate, set            aside  or correct  sentence under  28 U.S.C.    2255  for the            reasons stated in  the district court's  carefully considered            order of February 6, 1992.  We add only the following.                       The  Constitution does  not guarantee  petitioner a            winning defense,  only the assistance of  counsel that, under            the circumstances  present  at the  time of  trial, does  not            "f[a]ll  below  an  objective  standard  of  reasonableness."            Strickland v.  Washington, 466  U.S. 668, 698  (1984); United            __________     __________                              ______            States v.  Natanel,  938  F.2d  302,  309  (1st  Cir.  1991).            ______     _______            "Failure  to make  the required  showing of  either deficient            performance    or    sufficient    prejudice    defeats    an            ineffectiveness [of counsel] claim."  Strickland, 466 U.S. at                                                  __________            700.   Petitioner bears the burden to show the entitlement to            an evidentiary  hearing, Barrett  v. United States,  965 F.2d                                     _______     _____________            1184, 1193 (1st Cir.  1992), and must affirmatively establish            both  the  "performance" and  "prejudice"  components of  the            Strickland analysis.  Strickland, 466 U.S. at 687.             __________            __________                      We find, in concert  with the district court, that,            under   the  "highly   deferential"   scrutiny  ordained   by            Strickland,  id.  at  689,  petitioner's proffers  failed  to            __________   ___            "overcome the presumption that . . . the challenged action[s]            'might  be considered  sound  trial strategy.'"   Id.  at 698                                                              ___            (quoting  Michel  v. Louisiana,  350  U.S.  91, 101  (1955)).                      ______     _________                                         -2-            Since  appellant does  not  contend that  his lawyer's  trial            conduct resulted  from lack  of a thorough  investigation, or            neglect or ignorance, tactical decisions, such as not calling            particular defense witnesses  in the circumstances  presented            here, are  among the "plausible options"  that are "virtually            unchallengeable."    Barrett,  965   F.2d  at  1193  (quoting                                 _______            Strickland,  466  U.S. at  690).   As  such, they  "cannot be            __________            second-guessed on collateral review."  Id. at  1194 n.19; see                                                   ___                ___            also Natanel, 938 F.2d at 310.            ____ _______                      Regarding the  claim that his  attorney refused  to            allow him  to testify  at his trial,  petitioner's affidavit,            read  in light of the record,  suggests no more than that the            defendant, upon  advice of counsel, made the  decision not to            testify.   In Siciliano v.  Vose, 834  F.2d 29, 31  (1st Cir.                          _________     ____            1987),  we  found   defendant's conclusory  collateral relief            claims that his attorney prevented him from testifying at his            trial not  supported by  specific facts.   Here, petitioner's            affidavit that  his attorney "insisted" that  he not testify,            and that he  himself "insisted"  that he  wanted to  testify,            merely  states   conclusions  which  are  totally lacking  in            detailed factual  support.  United  States v. Butt,  731 F.2d                                        ______________    ____            75, 77  (1st Cir. 1984).   So read, petitioner has  failed to            demonstrate that  his  constitutional right  to  testify  was            abridged.   Siciliano, 834 F.2d at 31.  Nothing in the record                        _________            "provide[s] any reasons for concluding that any such specific                                         -3-            factual allegations would be credible."   Id. at 31 (emphasis                                _____                 ___            added).    Nor  does  petitioner otherwise  show,  much  less            suggest, that  defense counsel overlooked  a viable  defense.            See  United States  v. Porter,  924 F.2d  395, 397  (1st Cir.            ___  _____________     ______            1991).   Consequently, the decision  by the trial  judge, who            was thoroughly familiar with all the proceedings in the case,            not  to  hold an  evidentiary  hearing  was entirely  proper.            Ouellette  v. United States,  862 F.2d 371,  377-78 (1st Cir.            _________     _____________            1988).                       The  district court correctly concluded that "there            is not  a reasonable  probability that the  jury's conclusion            would have  been different  if the evidence  which petitioner            now says  [his] attorney  ...  should have  offered had  been            presented  to  it,"  and that,  accordingly,  petitioner  was            entitled to no  relief.   Rule 4(b), Rules  governing    2255            proceedings  ("If it  plainly appears  from the  face  of the            motion and any annexed exhibits and the  prior proceedings in            the  case that the  movant is not  entitled to relief  in the            district court, the judge shall make an order for its summary            dismissal.").                     The judgment of the district court is affirmed.                                                           ________                                         -4-
