                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 02-2387

                             BEVIL CAMPBELL,

                        Petitioner, Appellant,

                                      v.

                              UNITED STATES,

                         Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Robert E. Keeton, U.S. District Judge]


                                   Before

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




     Bevil Campbell on Request for Certificate of Appealability for
appellant.



                             August 25, 2004
            Per      Curiam.     Bevil       Campbell     seeks   a    certificate    of

appealability ("COA") to appeal from the district court's denial of

his motion pursuant to 28 U.S.C. § 2255.                    Campbell was convicted

following      a   jury   trial    of    conspiracy       to   import      a   controlled

substance, aiding and abetting the importation of a controlled

substance, and conspiracy to possess a controlled substance with

intent    to       distribute.          He    was    sentenced        to   121    months'

imprisonment, to be followed by 48 months' supervised release. His

conviction and sentence were affirmed on direct appeal. See United

States v. Campbell, 268 F.3d 1 (1st Cir. 2001).

            Campbell requests a COA to raise on appeal all of the

ineffective assistance of trial and appellate counsel claims he

raised in his § 2255 motion. A COA may issue "only if the applicant

has made a substantial showing of the denial of a constitutional

right."     28 U.S.C. § 2253(c)(2).

             The COA determination under § 2253(c) requires
             an overview of the claims in the habeas
             petition and a general assessment of their
             merits.    We look to the District Court's
             application    of   AEDPA   to    petitioner's
             constitutional claims and ask whether that
             resolution was debatable among jurists of
             reason.

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

            "To successfully claim ineffective assistance of counsel

under the Sixth Amendment, a defendant must establish that his

counsel's      performance        fell       below   an    objective       standard   of

reasonableness and 'that there was a reasonable probability that,

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but   for    counsel's   unprofessional         errors,       the   results     of   the

proceeding would have been different.'" United States v. Theodore,

354 F.3d 1, 5-6 (1st Cir. 2003)(quoting Strickland v. Washington,

466 U.S. 668 (1984)).         With regard to the performance aspect of the

standard, this court has held that it "demands a fairly tolerant

approach," Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir. 1994), and that

"since even the most celebrated lawyers can differ over trial

tactics in a particular case, a reviewing court must indulge a

strong presumption that counsel's conduct falls within the wide

range   of    reasonable      professional       assistance.'"          Id.    (quoting

Strickland, supra).

              The Supreme Court has held that "appellate counsel who

files   a    merits   brief     need   not     (and    should   not)     raise    every

nonfrivolous claim, but rather may select from among them in order

to maximize the likelihood of success on appeal." Smith v. Robbins,

528 U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745

(1983)).      Although it "is still possible to bring a Strickland

claim based on counsel's failure to raise a particular claim," the

Court   has    indicated      that     satisfying      the    first     part    of   the

Strickland test requires a showing that the ignored issues were

"clearly stronger than issues that counsel did present." Robbins,

528 U.S. at 288.

              Having thoroughly reviewed the record, including the

trial   transcripts,       we    agree    with        the    district    court       that


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"[o]verwhelmingly,     what    Campbell     asserts    as   errors    are   more

appropriately viewed as strategic decisions with which Campbell, in

hindsight,    disagrees."     District    Court's     Memorandum     and   Order,

9/4/02, p. 12. Our overview of Campbell's claims and assessment of

their merits leads us, essentially for the reasons stated by the

district court, to find that reasonable jurists could not debate

the conclusion that Campbell's ineffective assistance claims are

without merit.      We add the following comments with respect to

certain of the claims.

          Campbell faulted his trial counsel for failing to move

for suppression of derivative evidence for violation of his Fourth

Amendment rights.      However, the district court's finding that

Campbell was "in custody" for Fifth Amendment purposes would not

necessarily dictate a finding that he had been unreasonably seized

for Fourth Amendment purposes and that all evidence derivative of

that seizure should be suppressed. See United States v. Newton, 369

F.3d 659, 673 (2d Cir. 2004) (discussing differences between two

standards).     Moreover, Campbell has failed to make a substantial

showing that the exclusion of the evidence derived from his seizure

at the airport would likely have resulted in his acquittal.

             Similarly, reasonable jurists could not find a reasonable

probability that the exclusion of Campbell's statements to customs

officials at the time of his seizure would have resulted in

acquittal on any of the counts.          In view of the substantial direct


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evidence of Campbell's involvement in the charged conspiracy, the

statements have only marginal significance.         Therefore, Campbell

has not made the requisite showing that defense counsel's cross-

examination of a government witness which led the court to reverse

its decision to exclude the statements, constituted ineffective

assistance of counsel.

           Campbell faults both his trial and appellate counsel for

failing to argue that the supervised release term violated the rule

of Apprendi v. New Jersey, 530 U.S. 466 (2000), because it "exceeds

the term prescribed by 21 U.S.C. § 841(b)(1)(C)." § 2255 Motion, p.

34.   However, that statute prescribes a minimum term of supervised

release of three years, and no maximum term. See United States v.

Lopez, 299 F.3d 84, 90 (1st Cir. 2002), cert. denied, __ U.S. __,

124 S.Ct. 1095 (2004).     Therefore, reasonable jurists could not

dispute that Campbell's attorneys were not ineffective for failing

to challenge the supervised release term on that basis.

           Campbell argues that appellate counsel was deficient for

failing to challenge the district court's excusal of one of two

black jurors.   After the close of evidence and prior to closing

arguments, the juror had expressed to the clerk her concern that

because she "runs in the same circles" within the Carribean-

American community   in   Boston   as    the   defendant,   she   might   be

recognized by Campbell's family and friends as a juror on his case.

After a colloquy between the court, counsel and the juror, the


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court supportably found that the juror "is genuinely concerned

about her safety and that that would interfere with her being open

and   candid   and   participating    with   the   other   jurors   in   the

deliberations in the case."

           Under the Federal Rules of Criminal Procedure, "[t]he

court may impanel up to 6 alternate jurors to replace any jurors

who are unable to perform or who are disqualified from performing

their duties." Fed.R.Crim.P. 24(c)(1) (emphasis added).         The court

has substantial discretion in decisions to excuse jurors. See

United States v. Gonzalez-Soberal, 109 F.3d 64, 66 (1st Cir. 1997).

A judge may remove a juror "when 'convinced that the juror's

abilities to perform his duties [have] become impaired.'" United

States v. Walsh, 75 F.3d 1, 5 (1st Cir. 1996).      Here, the transcript

of the voir dire with the juror supports the judge's finding that

the juror's fear would impair her ability to perform her duties.

There is no suggestion from the record, and Campbell does not

allege, that the juror was excused because of her race.             And the

fact that there was only one juror of the defendant's race on the

jury, standing alone, is not ground for reversal. "[A] defendant

has no right to a 'petit jury composed in whole or in part of

persons of his own race.'" Batson v. Kentucky, 476 U.S. 79, 85

(quoting Strauder v. West Virginia, 100 U.S. 303, 305 (1880)).

Therefore, reasonable jurists could not find that this issue was

clearly stronger than those presented by appellate counsel.


                                     -6-
            Finally, Campbell is not entitled to a COA to pursue the

claim that counsel was ineffective for failing to anticipate the

Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct.

2531 (2004).    On appeal, this court held that there was no Apprendi

violation    because   Campbell   was    sentenced   below   the   statutory

maximum of 240 months. See 21 U.S.C. § 841(b)(1)(C).          In his § 2255

motion, Campbell argued that appellate counsel should have argued

that Apprendi was violated because Campbell's base offense level

under the sentencing guidelines was enhanced based on the drug

quantity.    He has now filed an addendum to his COA memorandum in

which he asks that Blakely "be applied in evaluating the arguments

which he has placed before the court." Notice of Supplemental

Authority, p. 1.

            This case does not require us to decide whether Blakely

applies to the federal sentencing guidelines or whether it applies

retroactively to cases on collateral review.             Because Campbell

stipulated at trial to a drug quantity that corresponded to the

base offense level used to calculate his sentence, he cannot show

that he was prejudiced by the failure to charge the specific drug

quantity in his indictment. See United States v. Riggs, 347 F.3d

17, 20 (1st Cir. 2003), cert. denied, __ U.S.__, 124 S.Ct. 1095

(2004).     Moreover, counsel's failure to anticipate Blakely would

not constitute unreasonable performance under Strickland because

"First    Circuit   jurisprudence   on    this   point   ha[d]     been   well


                                    -7-
established." Campbell, 268 F.3d at 7, n.7.   Therefore, reasonable

jurists could not find that he has made a substantial showing that

the Blakely issue would have been clearly stronger than the issues

raised by appellate counsel.1

          Campbell's request to proceed IFP is granted, but his

request for a COA is denied.    The appeal is terminated.




     1
       To the extent that petitioner is seeking to assert a new
claim based on Blakely (rather than to provide supplemental support
for his ineffective assistance claim), he would be required to
present that claim first in the district court. Certification to
file a second or successive petition could not be granted unless
the Supreme Court had held that Blakely applied retroactively to
cases on collateral review. 28 U.S.C. § 2255.

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