March 15, 1993
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-2054 

                     ANDRE LOPEZ POLANCO,

                    Plaintiff, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

           [Hon. Gene Carter, U.S. District Judge]
                                                 

                                         

                            Before

                    Selya, Cyr and Boudin,
                       Circuit Judges.
                                     

                                         

Andre Lopez Polanco on brief pro se.
                   
Richard S. Cohen,  United States Attorney, Margaret D.  McGaughey,
                                                                 
Assistant United States  Attorney, and Thimi R. Mina, Assistant United
                                                
States Attorney, on brief for appellee.

                                         

                                         

          Per Curiam.   Andre Lopez Polanco  was convicted of
                    

sentence.   He  now  appeals  the  district  court's  summary
and  abetting  the  possession   with  intent  to  distribute
conspiring to distribute cocaine and of possessing and aiding
conspiring to  possess  with  intent  to  distribute  and  of

dismissal of his motion.  We affirm.
Polanco brought a motion under 28 U.S.C.   2255 to vacate his
cocaine.   After  we  confirmed  his  conviction  on  appeal,

it did not tell the jury what its final decision was; (3) the
following grounds for  relief:  (1)  he received  ineffective

telephone conversation; (2) the district court told the  jury
challenge the court's admission of testimony about a  certain
assistance of counsel because his appellate attorney did  not

final ruling after all  the evidence had been  presented, but
that it would admit  that testimony conditionally and make  a

four-level increase  in his  base offense  level for  being a
          In his  section 2255  motion,  Polanco alleged  the

testimony of  witnesses hoping  to receive  lesser sentences,

have  distributed  was  calculated  by  adding  together  the
a  conviction"; (4) the quantity of cocaine he was alleged to

amounts the government's  witnesses stated they  had received
rendering  such testimony "a form of coercion in order to get

two-level  increase  in  offense  level  for  obstruction  of
from him, amounts which  could have been fabricated;  (5) the
leader  and organizer was wrong  because it was  based on the

justice,  which the  court  based on  his  perjury at  trial,
violated his  "right to  self-defense"; and (6)  the district

court did not hold an evidentiary hearing.  

          We   have   stated   that  summary   dismissal   is

appropriate when a section 2255 petition is inadequate on its

face, or is conclusively  refuted as to the alleged  facts by

the files and records of the case.  Barrett v. United States,
                                                            

965  F.2d  1184, 1186  (1st  Cir. 1992).    Summary dismissal

without an evidentiary hearing is also proper  if the grounds

for   relief   stated   in   the   motion    are   conclusory

generalizations    or   assertions    without   "sufficiently

particular  and supportive  allegations of fact"  showing why

habeas  relief is warranted.  Id.; see also Bernier v. Moore,
                                                            

441  F.2d 395,  396 (1st  Cir. 1971)  (per curiam);  Aubut v.
                                                          

Maine,  431 F.2d 688, 689 (1st Cir. 1970).  Because Polanco's
     

motion is inadequate on its face, presenting claims which are

either refuted as  to alleged facts by the record, conclusory

or  otherwise  without  merit,  we affirm  the  dismissal  of

Polanco's petition.  

          1.  Ineffective Assistance of Counsel
                                               

          Polanco alleges that his appellate counsel rendered

ineffective assistance  by not challenging the  trial court's

admission of testimony about a certain telephone conversation

which Polanco  alleges was hearsay.   A claim  of ineffective

assistance of  counsel is properly  raised in a  section 2255

motion,  see United States v. Caggiano, 899 F.2d 99, 100 (1st
                                      

                             -3-

Cir.   1990),  but   Polanco's  claim   fails  for   lack  of

specificity.   Polanco provides  no identifying details about

the conversation he is  referring to, and does not  say which

witness testified  about  the  conversation.    Although  the

transcripts submitted to this court contain testimony about a

telephone conversation which is probably the one in question,

other  trial  transcripts were  not  made  available to  this

court, and so we  cannot know for sure that  the conversation

in  the transcripts we have is the relevant conversation.  In

any  event,  Polanco  does   not  explain  how  admission  of

testimony  about that telephone  conversation prejudiced him,

and  prejudice  is  not  apparent from  the  record.    Three

witnesses independently testified  that Polanco had  provided

them with cocaine, which they distributed, that they had paid

the proceeds  from their cocaine  sales to Polanco,  and that

they  had made  out-of-state trips  with Polanco  to  pick up

cocaine for distribution within the state.  That evidence was

sufficient to convict him of the drug charges against him.   

          We  have said that  it is well  within the district

court's  discretion to  decline  to hold  a  hearing where  a

habeas petitioner merely states what counsel's alleged act or

omission is  without  explaining why  it  constituted  "gross

impropriety or prejudicial misconduct."  Bernier, 441 F.2d at
                                                

396.  This is so even  where the petitioner is proceeding pro

                             -4-

se.  Id.  Because Polanco did not provide any factual details
        

to support  his claim  of ineffective assistance  of counsel,

and the  record suggests  that no  such facts  exist, summary

dismissal was appropriate.

          2.  Remaining Claims
                              

          In view of the fact that Polanco's remaining claims

have  no merit and have  been waived, as  described below, we

need not  consider  whether they  are properly  brought in  a

section 2255 proceeding.  

          Polanco complains  that the district  court did not

confirm  for  the  jury   that  certain  testimony  had  been

correctly  admitted,  but  he  does  not  describe  how  that

omission  prejudiced him.   Nor  can we  see how  the court's

failure to  confirm at the  conclusion of trial  that certain

evidence  had  been properly  admitted could  have prejudiced

Polanco.    Had the  court determined  that  it had  erred in

admitting the evidence, and then failed to inform the jury of

its decision, obviously Polanco could have been prejudiced by

the jury's consideration of the improperly admitted evidence.

Here, however, the  evidence was found to have  been properly

admitted, and so the jury's consideration of the evidence was

entirely appropriate  and the court's failure  to verify that

could not have prejudiced Polanco.  

        Polanco  also claims  that the  increase in  his base

offense  level for  being a  leader and  organizer  was wrong

                             -5-

because  it was based on the testimony of witnesses hoping to

receive lesser  sentences.   Thus, Polanco does  not actually

challenge the court's  finding that Polanco was  a leader and

organizer, but  essentially assails  the  credibility of  the

witnesses  testifying against  him.   On  direct examination,

those witnesses  described the  nature of their  agreement to

cooperate   with  the   government,  and   Polanco's  counsel

thoroughly cross-examined them on that subject, providing the

jury  an  adequate  basis  for  judging   their  credibility.

Consequently, we find no merit in this claim of error.  

        Nor  is  there  merit  in Polanco's  claim  that  the

quantity  of drugs  he allegedly  distributed  was improperly

based on testimony given at trial.  Polanco's only  challenge

to  that testimony is his bare speculation that it might have

been fabricated.  Again, Polanco's  counsel vigorously cross-

examined   the  witnesses  in   question.    Furthermore,  at

sentencing his counsel conceded that the presentence report's

statement  of  the amounts  of  drugs distributed  accurately

reflected their testimony.  

        Finally,  Polanco claims that  enhancing his sentence

for obstruction of justice because of his trial testimony was

a violation of his right to testify in his own defense.  That

bare allegation is insufficient to  state a claim for relief.

The  district  court  determined  that  Polanco  --  who  had

testified that  he had not  been involved  in any way  in the

                             -6-

alleged  distribution  of cocaine  --  had  committed perjury

during  the trial.   Polanco  does  not dispute  the district

court's finding before  this court.  In  fact, he practically

confirmed  his perjury  by asking  the district  court before

sentencing whether there was "some way that I can collaborate

with the government," complaining that no one had  ever asked

him whether he wished  to collaborate.  Case law  makes clear

that  a defendant's right to  testify on his  own behalf does

not include the right  to commit perjury, and thus  Polanco's

claim must  fail.  See  Nix v. Whiteside,  475 U.S. 157,  173
                                        

(1986)  ("Whatever the  scope  of a  constitutional right  to

testify, it is elementary  that such a right does  not extend

to  testifying  falsely.")  (emphasis  in  original);  United
                                                             

States  v. Grayson,  438  U.S. 41,  54  (1978) ("[t]he  right
                  

guaranteed by law  to a  defendant is narrowly  the right  to

testify  truthfully in accordance with  [his] oath .  . . ");

see  also United States  v. Batista-Polanco, 927  F.2d 14, 22
                                           

(1st Cir.  1991) (the obstruction of  justice enhancement for

falsely testifying in one's own defense  does not implicate a

constitutional  right); United  States v.  Akitoye, 923  F.2d
                                                  

221,  228  (1st  Cir.   1991)  (the  obstruction  of  justice

enhancement  for  false  trial  testimony does  not  chill  a

defendant's exercise of sixth amendment rights).

          Finally,  we   note  that,  although   Polanco  was

represented  by counsel, he failed  to raise the above claims

                             -7-

in his direct  appeal, thereby waiving  them unless he  shows

cause  and prejudice under  United States v.  Frady, 456 U.S.
                                                   

152,  167 (1982).  See  United States v.  Biberfeld, 957 F.2d
                                                   

98, 104 (3d  Cir. 1992) (the  waiver of a section  2255 claim

may be  excused where  the defendant  shows cause  and actual

prejudice).   Polanco has made  no such showing  and does not

allege that his attorney  rendered him ineffective assistance

of  counsel  in  failing  to raise  these  issues  on appeal.

Accordingly, we conclude that summary dismissal of his motion

without an evidentiary hearing was proper.

          The judgment of the district court is affirmed.
                                                        

                             -8-
