
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1647                                   JAMES SINGLETON,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________             Richard J. Shea for appellant.             _______________             Carlos  A. P rez,  Assistant  United States  Attorney, with  whom             ________________        Daniel  F. Lopez-Romo,  United States  Attorney, and  Jos   A. Quiles-        _____________________                                 ________________        Espinosa, Senior Litigation Counsel, were on brief for appellee.        ________                                 ____________________                                    June 10, 1994                                 ____________________                    CYR, Circuit Judge.  Petitioner James Singleton appeals                    CYR, Circuit Judge.                         _____________          from  a district  court  order dismissing  his  motion for  post-          conviction  relief, see  28  U.S.C.   2255,  from  a judgment  of                              ___          conviction  for possessing marijuana,  with intent to distribute,          in violation of the Maritime  Drug Law Enforcement Act  (MDLEA).1          See 18  U.S.C.   2; 46  U.S.C. App.   1903(a),  (c), (f).   Along          ___          with  a surfeit of lesser grounds, we must assess whether Single-          ton was  denied effective assistance, see  Strickland v. Washing-                                                ___  __________    ________          ton, 466 U.S.  668 (1984),  based on trial  counsel's failure  to          ___          object to a jury instruction which effectively directed a verdict          on an essential  element of  the crime  charged.   We affirm  the          district court judgment.                                             I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Shortly after midnight  on January 5, 1988,  the United          States Coast  Guard Cutter  DAUNTLESS made  radar contact with  a          vessel  approaching on the high seas from the direction of Haiti.          Suspecting  that   the  vessel  might  contain   illegal  Haitian          immigrants, the DAUNTLESS attempted to establish radio communica-          tion,  but to no avail.   Shortly thereafter,  Coast Guard Ensign          Pulver  approached to  within  thirty yards  of the  unidentified          vessel in a boarding craft, and noted the name MARILYN  E and the                                        ____________________               1Singleton's  conviction  was  upheld on  direct  appeal  in          United States v. Doe, 921 F.2d 340 (1st Cir. 1990).          _____________    ___          letters "KA" and  "JN" on the stern but  no home port designation          or flag.   Pulver  made voice  contact with  a person aboard  the          MARILYN E who explained that  the vessel was en route from  King-          ston  Bay, Jamaica, and bound for Kaison Bank, in the Bahamas, to          fish.          Ensign  Pulver  obtained  consent  to   board  the          MARILYN E from codefendant Willey Gordon, the master.  Pulver and          the  boarding  crew found  Gordon, Singleton  and four  others on          board the  MARILYN E.   The MARILYN  E was leaky  and in  serious          disrepair.   The scant fishing  gear on board  was inoperable and          the vessel was not provisioned for an extended voyage.                      Shortly after boarding, Pulver asked the master for the          certificate of  documentation.   Gordon asserted that  though the          MARILYN  E was of Jamaican registry, she was carrying no documen-          tation.  At that point, codefendant Earl McLeish volunteered that          he  knew  where  the documentation  papers  were  kept,  and soon          produced a Coast Guard "bill of  sale" form and an expired United          States  Certificate of  Documentation.2   Asked  what was  in the          hold, Gordon responded  that it contained ice.   Whereupon Pulver          requested  and received  permission to open  the hold,  which was                                        ____________________               2Though both  documents  suggested United  States  registry,          neither  the bill of sale nor the expired certificate of documen-          tation constituted proper documentation of registry.  The bill of          sale  memorialized a  1986 sale  of the  MARILYN E  by one  Clyde          Randolph Eubanks to one Hubert Henderson, and was acknowledged in          Cateret County, North Carolina.  The certificate of documentation          was  registered to Eubanks but had expired more than one and one-          half years earlier.                                           3          foundtocontainbalesofmarijuanaweighingapproximately3,750 pounds.3                    Ensign Pulver requested authorization from the Command-          er of the DAUNTLESS to arrest the captain and crew of the MARILYN          E.   But because the  procedures to be  followed in arresting the          crew,  and seizing the vessel, would depend on the nationality of          the  MARILYN  E,  Pulver continued  to  question  Gordon.   Asked          whether  there were  any flags  aboard the  MARILYN E,  Gordon at          first  said there were none, but then corrected himself by saying          he  believed there was one flag forward.  Upon overhearing Ensign          Pulver's question  to Gordon,  Singleton located a  United States          flag  and  a plain  yellow  quarantine flag  in the  fore  of the          vessel.4  Thus,  it remained unclear whether the  MARILYN E was a          United States vessel,  as the  United States flag  and the  dated          documentation  papers  suggested,  a Jamaican  vessel,  as Gordon          claimed, or a stateless vessel.                      In order to ensure the legality  of the ensuing arrests          and seizure, Ensign  Pulver initiated a formal request  to obtain                                        ____________________               3To  this point,  Singleton's  only statement  to the  Coast          Guard had  been:  "I'm  James Singleton  and I'm from  the United          States."                4Our opinion on  direct appeal merely  stated that the  flag          was yellow.   Doe, 921 F.2d  at 342.  The  district court opinion                        ___          dismissing appellant's  section  2255 motion  states that  "[t]he          yellow  flag was later identified  as being a  flag from Quebec."          Singleton  v. United States, 789 F. Supp. 492, 494 (D.P.R. 1992).          _________     _____________          The  confusion is entirely  understandable, but we  note that the          yellow flag in question is a signalling flag indicating  "quaran-          tine."   Howard L. Andrews & Alexander L. Russell, Basic Boating:                   ________________________________________  ______________          Piloting and Seamanship 65  (2d ed. 1974).  In  nautical circles,          _______________________          it is known, colloquially, as "Quebec," the international phonet-          ic representation for the  letter "Q," see The ARRL  Handbook for                                                 ___ ______________________          the Radio  Amateur  38-4 (Kirk  A.  Kleinschmidt ed.)  (67th  ed.          __________________          1990).                                          4          Jamaican consent to  the enforcement of  United States drug  laws          aboard the  MARILYN E,5  and simultaneously  sought authorization          from  the Coast  Guard  Commandant in  Washington, D.C.   Several          hours later,  with authorization from the  Coast Guard Commandant          and  the consent of the  Jamaican government, the  six persons on          board the MARILYN E  were arrested and transferred to  the DAUNT-          LESS,  whereupon Miranda  warnings  were  administered  to  each.          Shortly thereafter,  the Coast Guard Cutter  MOHICAN rendezvoused          with the DAUNTLESS, took custody of the MARILYN E, and set out to          tow  her to  Puerto  Rico.   The  MARILYN E  proved  unseaworthy,          however, and she sank (with most of  her illicit cargo) en route.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   The Erroneous Jury Instruction          A.   The Erroneous Jury Instruction               ______________________________                    Singleton  contends  that the  trial  judge effectively          withdrew  from the jury a  material element of  the crime charged          under 46 U.S.C. App.    1903(a); viz., whether the MARILYN  E was                                           ____                                        ____________________               5Had Gordon's  unsubstantiated  claim of  Jamaican  registry          proven  valid, Jamaican  "consent" would  have been  necessary to          secure jurisdiction under the  criminal statute pursuant to which          Singleton  and the other defendants were indicted.  See 46 U.S.C.                                                              ___          App.    1903(c)(1)(C) (authorizing  enforcement of  United States          drug  laws  on, inter  alia, "a  vessel  registered in  a foreign                          _____  ____          nation where the flag nation has consented or waived objection to          the enforcement of United States law by the United States").                                           5          "a vessel  subject to  the  jurisdiction of  the United  States,"          within themeaning of theMDLEA.6 The jury wasinstructed asfollows:                    Well,  in  this particular  case, one  of the                    elements  that  you  will have  to  decide is                    whether  this  was  a  vessel  of the  United                    States and there is no real controversy in my                               _____ __ __ ____ ___________ __ __                    own mind  about that.  The  parties, the evi-                    ___ ____  _____ ____                 ___ ____                    dence is there.  There is [sic] exhibits that                    _____ __ _____                    tell  you that  this  vessel was  registered,                                    ____  ______ ___  __________                    documented in the United States . . . .                    __________ __ ___ ______ ______                         [46 U.S.C. App.    1903] says  basically                    this, it is unlawful  for any person on board                    a vessel of  the United States or on  board a                    vessel  subject  to the  jurisdiction  of the                    United States and in  this particular case, I                    already  pointed to  you out [sic.]  the fact                    that there is no real  controversy about that                                  __ ____  ___________ _____ ____                    fact . . .  That is what you  have to decide,                    ____                    possess  with the  intent to  manufacture and                    distribute  a  controlled substance  and then                    sub-section C is the  one that defines a ves-                    sel subject to the jurisdiction of the United                    States and  I have already told  you that the                                _ ____ _______ ____  ___ ____ ___                    Marilyn E,  with the  papers that we  have on                    _______ _                    hand, is a vessel subject to the jurisdiction                          __ _ ______ _______ __ ___ ____________                    of the United States. . . .                    __ ___ ______ ______                         . . . If I were  to read the elements of                    this offense, I would tell you as follows:  I                    would tell you that you would have to find in                    each particular case  that each defendant was                    located  on  board a  vessel  subject  to the                    jurisdiction of the  United States when  this                    happened. . . .                                        ____________________               6At the time of Singleton's arrest and conviction, the MDLEA          provided:               It is unlawful for any person on  board a vessel of the               United  States, or  on board  a vessel  subject to  the               jurisdiction  of the  United  States,  to knowingly  or               intentionally  manufacture or distribute, or to possess               with intent to manufacture or  distribute, a controlled               substance.           46  U.S.C. App.   1903(a)  (Supp. 1987).   A subsequent amendment          extended jurisdiction over a "citizen of the United States .  . .          aboard any  vessel."  See  Pub. L. 100-690,    7402(a), Oct.  21,                                ___          1988, 102 Stat. 4181 (amending 46 U.S.C. App.   1903(a)).                                           6          (Emphasis added.)7                      In  its  ruling  dismissing  Singleton's  section  2255          motion, see  Singleton v. United  States, 789  F. Supp. 492,  495                  ___  _________    ______________          (D.P.R.  1992), the district court  recognized the fair import of          the challenged instruction to  be that the jurisdictional element          of  the crime charged had been established to the satisfaction of          the  court.  See United States v.  Potes, 880 F.2d 1475, 1478 n.1                       ___ _____________     _____          (1st Cir. 1989) ("Because  this jurisdictional requirement was an          element of the offense,  and because it depended upon  factual as          well  as  legal determinations,  it was  for  the jury  to decide          whether  it had  been satisfied.").   The  district court  ruled,          nonetheless, that any error  was harmless.   Id. at 501-04.8   On                                                       ___          appeal, Singleton insists that this instructional error could not          have   been  harmless  since   it  relieved   the  jury   of  its                                                                        ___          responsibility to determine whether  the government had proven an          essential element of the crime beyond a reasonable doubt.                    We observe at the  outset that the established "princi-          ple  that  collateral  review  is different  from  direct  review          resounds throughout  our habeas jurisprudence."   Brecht v. Abra-                                                            ______    _____          hamson, 113 S. Ct. 1710, 1719 (1993).  A presumption  of finality          ______                                        ____________________               7Singleton's trial counsel neither requested  an instruction          on the  jurisdictional element,  nor objected to  the instruction          given.                8The harmlessness  ruling was  based on the  conclusion that          the MARILYN E was a "vessel of the United States" under 46 U.S.C.             12111(c)(1),  which  provides  that "until  a  certificate  of          documentation is surrendered with  the approval of the Secretary,          a documented vessel is deemed to  continue to be documented . . .          ."  The government concedes that the quoted provision was enacted          after these events took place.                                           7          attaches  to criminal  convictions once  all direct  appeals have          been exhausted.  Barefoot v. Estelle,  463 U.S. 880,  887 (1983);                           ________    _______          United  States  v. Frady,  456 U.S.  152,  164-65 (1982).   Post-          ______________     _____          conviction  relief  on  collateral  review  is  an  extraordinary          remedy,  available only  on a  sufficient showing  of fundamental          unfairness. Brecht, 113 S. Ct. at 1719.  Trial errors, even those                      ______          that implicate Seventh Amendment  concerns, are subject to strin-          gent  "harmless error" review in a collateral proceeding.  Id. at                                                                     ___          1723 (Stevens, J., concurring).                    We  recently  had  occasion  to survey  the  developing          "harmless error" jurisprudence  in a section 2254  case where the          petitioner  sought to overturn his state  court conviction on the          basis  of an erroneous jury  instruction. See Libby  v. Duval, 19                                                    ___ _____     _____          F.3d  733, 738-40 (1st  Cir. 1994).  In  Libby, we identified the                                                   _____          appropriate "harmless  error" inquiry  as whether  the government          can demonstrate that  the erroneous instruction  "did not have  a          substantial and injurious effect  or influence in determining the          jury's verdict." Id. at 18 & n.15; see also Brecht, 113 S. Ct. at                           ___               ___ ____ ______          1722  (quoting  Kotteakos v.  United  States, 328  U.S.  750, 776                          _________     ______________          (1946)).9   The "actual  prejudice" review required  under Brecht                                                                     ______                                        ____________________               9Libby and Brecht  arose under 28 U.S.C.   2254.   Thus, one                _____     ______          significant element in the rationale underlying Brecht    namely,                                                          ______          comity  concerns based in federalism     is plainly  lacking in a          collateral proceeding arising under 28 U.S.C.    2255.  Neverthe-          less, we think the Brecht rationale    fundamentally anchored  in                             ______              _____________          traditional concerns  for finality    operates with like vigor in          the  federal  habeas context:    "granting  habeas relief  merely          because  there is  a  'reasonable possibility'  that trial  error          contributed  to the verdict, Chapman v.  California, 386 U.S. 18,                                       _______     __________          24, is at odds with  the historic meaning of habeas corpus  -- to          afford relief  to those  whom society has  'grievously wronged.'"                                          8          must encompass the  record as a  whole.  Id.;  Libby, 19 F.3d  at                              ______ __ _  _____   ___   _____          740.   Under  the  well-seasoned  Kotteakos standard,  therefore,                                            _________          trial  error is deemed  harmless only  if the  record as  a whole          permits the reviewing court to conclude:                    "with  fair  assurance,  after pondering  all                    that happened without stripping the erroneous                    action  from the whole, that the judgment was                    not  substantially  swayed  by   the  error."                    [Kotteakos, 328 U.S. at  765.  This test] "is                     _________                    satisfied if it is 'highly probable' that the                    challenged  action did  not affect  the judg-                    ment."  United States  v. Hernandez-Bermudez,                            _____________     __________________                    857 F.2d 50, 53 (1st Cir. 1988).            United States v. Wood, 924 F.2d 399, 402 (1st Cir. 1991) (quoting          _____________    ____          United States v. Ladd, 885 F.2d 954, 957 (1st Cir. 1989)).  Thus,          _____________    ____          the Singleton conviction can  withstand collateral review only if          it  is determined,  based on  the entire  trial record,  that the          government  has demonstrated  that a  reasonable jury  would have          found  that the  jurisdictional element  required for  conviction          under  section 1903  was  established beyond  a reasonable  doubt          notwithstanding the erroneous instruction.                     The present inquiry under Kotteakos and Brecht requires                                              _________     ______          close examination of the MDLEA and its jurisdictional predicates.          The MDLEA  in force in  January 1988 proscribed  possession, with          intent  to distribute, marijuana "on board a vessel of the United          States  or a  vessel subject  to the  jurisdiction of  the United                  __          States."  46 U.S.C. App.   1903(a) (Supp. 1987) (emphasis added).          Section 1903(c)  provides in pertinent part that the term "vessel          subject to the jurisdiction of the United States" includes:                                        ____________________          Brecht, 113 S. Ct. at 1721 (secondary citations omitted).           ______                                          9               (A)  A vessel without nationality;               (B)  A  vessel  assimilated  to a  vessel  without                    nationality, in accordance with  Article 6(2)                    of the 1958 Convention on the High Seas; and               (C)  A vessel registered in a foreign nation where                    the  flag  nation  has  consented  or  waived                    objection to the enforcement of United States                    law by the United States.           See 46 U.S.C.  App.    1903(c).  Thus,  jurisdiction would  exist          ___          under the MDLEA if the  MARILYN E were (1) American, as  a vessel          of the  United States;  (2) Jamaican, since  Jamaican authorities          consented  to her boarding; (3)  a vessel without nationality; or          (4) a vessel assimilated to a vessel without nationality.10                      Section 1903(c)(1)(B)  provides that a  "vessel assimi-          lated to a vessel without nationality" in accordance with Article          6(2) of the Convention on the High Seas comes within the ambit of          the  MDLEA.  United States v. Passos-Paternina, 918 F.2d 979, 982                       _____________    ________________          (1st Cir. 1990),  cert. denied,  499 U.S. 982  (1991), and  cert.                            _____ ______                         ___  _____          denied 111 S. Ct. 2809 (1991).   Article 6(2) provides that  "[a]          ______          ship which sails  under the flags  of two  or more States,  using          them according to convenience, may not claim any nationalities in          question  with respect to any other state, and may be assimilated          to a ship  without nationality."   Convention on  the High  Seas,          Art. 6(2), opened for  signature, Apr. 29, 1958, 13  U.S.T. 2312,                     _____________________          T.I.A.S. No. 5200, quoted in United States v. Ayaraza-Garcia, 819                             _________ _____________    ______________                                        ____________________               10The trial record amply supports the district court finding          that  section 1903  jurisdiction  was never  contested at  trial.          Indeed, the  government and the defendants  paid little attention          to it.   Although there can be no doubt that the jury instruction          was  premised, however improvidently,  on the  correct impression          that  section 1903  jurisdiction was  a non-issue  as far  as the          parties were  concerned, this weakness in  the government's trial          presentation is no less vigorously pressed on collateral review.                                          10          F.2d  1043, 1046-47  (11th  Cir.),  cert.  denied, 484  U.S.  969                                              _____  ______          (1987); see also United States  v. Garate-Vergara, 942 F.2d 1543,                  ___ ____ _____________     ______________          1554-55 (11th  Cir. 1991), modified,  991 F.2d  662 (11th  Cir.),                                     ________          cert.  denied, 114 S. Ct.  481 (1993); Passos-Paternina, 918 F.2d          _____  ______                          ________________          at  982 ("the  clear purport  of [Article  6(2)] requires  that a          vessel which sails under the authority of two or  more nations be          considered 'assimilated to a  vessel without nationality.'").  In          the  context of the  MDLEA, Article 6(2)  is broadly interpreted,          and reaches beyond the  literal thrust of its "flying  two flags"          language to encompass conduct  amounting to conflicting claims of          nationality.  Id. (surveying cases).                         ___                    As to  the registry of  the vessel, the  record reveals          that  Captain Gordon was evasive,  claiming at various times that          the MARILYN E carried neither flags nor  documentation.  Although          the captain asserted that the MARILYN E was of Jamaican registry,          and a crew member claimed to have sailed out of Kingston Bay, the          scant documentation, and the only flags found on board, suggested          United  States registry.  Further,  the MARILYN E  was not flying          the flag of any nation  at the time she was sighted, nor  did she          bear  her home  port designation  or other  registry information.          See United States v. Matute, 767 F.2d 1511, 1513 (11th Cir. 1985)          ___ _____________    ______          (finding  absence of  home port  designation "a  clear indication          that  the crew  wanted  to be  able  to manipulate  the  vessel's          'nationality' on short notice").  Section 1903(c)(1)(B) was meant          to encompass this precise  sort of ambivalent behavior.   See id.                                                                    ___ ___          (holding  that  use of  Colombian  flag  and Venezuelan  registry                                          11          papers is  "precisely" what statute and  Article 6(2) contemplat-          ed); Passos-Paternina, 918 F.2d at 981-83 (holding that conflict-               ________________          ing claims of registry and carrying different flags  "were tanta-          mount  to sailing  under the  authority of  more than  one nation          under convenience").                      The uncontroverted evidence  that the captain  and crew          repeatedly   provided  the   Coast  Guard   with   equivocal  and          contradictory registry  information satisfies us that  a properly          instructed jury would  have concluded that the  United States met          its  burden of  proving,  beyond  a  reasonable doubt,  that  the          MARILYN E was a "vessel subject to the jurisdiction of the United          States" within the meaning of 46 U.S.C.   1903.            B.   Ineffective Assistance of Counsel          B.   Ineffective Assistance of Counsel               _________________________________                    The Sixth Amendment  provides that criminal  defendants          are  entitled  to  the  effective assistance  of  trial  counsel.          Strickland, 466 U.S.  at 687.   "But 'the  Constitution does  not          __________          guarantee a  defendant a  letter-perfect defense or  a successful          defense; rather  the performance  standard is that  of reasonably          effective  assistance under  the circumstances  then obtaining.'"          Lema v. United States,  987 F.2d 48, 50 (1st  Cir. 1993) (quoting          ____    _____________          United  States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991)).          ______________    _______          "The  habeas court  must evaluate  the [challenged]  conduct from          counsel's perspective  at the time,  considering  the totality of          the circumstances before it, and making every effort to eliminate          the distorting effects of hindsight."  Id. (citations  and quota-                                                 ___          tions omitted).   We indulge "a strong presumption that counsel's                                          12          conduct  falls within  a  wide range  of reasonable  professional          assistance."   Id. (citing Strickland, 466 U.S. at 689).  Besides                         ___         __________          bearing the  burden of  proving that trial  counsel's performance          was not within  this wide range of reasonable professional assis-          tance, Singleton  must establish that  counsel's performance  was          sufficiently prejudicial to  undermine confidence in  the outcome          of the trial.  Strickland, 466 U.S. at 693-94.  Singleton asserts                         __________          prejudice  from  several alleged  lapses  on  the  part of  trial          counsel.11                      First, he points out that trial counsel did not attempt          to suppress the evidence seized aboard the MARILYN E.  The uncon-          troverted record  evidence reveals,  however, that the  master of          the MARILYN E consented  to the Coast Guard boarding.   Moreover,          the MARILYN  E was subject to  boarding simply on the  basis of a          reasonable  pre-boarding  suspicion  that  she  was  a  stateless          vessel.  See United  States v. Alvarez-Mena, 765 F.2d  1259, 1268                   ___ ______________    ____________          (5th  Cir.  1985) ("Coast  Guard  need  have  only a  'reasonable          suspicion' that a vessel  is subject to United States  law before          effecting  a seizure  of the  vessel in  international waters.");          accord Potes, 880 F.2d at 1478 (dicta).  As the MARILYN E flew no          ______ _____          flag, bore no home port designation,  and could not be raised  by          radio,  there was an adequate  basis for the reasonable suspicion          needed to stop and board her.  See Alvarez-Mena, 765 F.2d at 1268                                         ___ ____________                                        ____________________               11As it  resulted in  no "prejudice"  within the  meaning of          Strickland, see supra pp. 5-12, we need give no further consider-          __________  ___ _____          ation to  the "ineffective  assistance" claim that  trial counsel          failed to challenge  the jury instruction on section  1903 juris-          diction.                                            13          (finding abundant reasonable suspicion  where, inter alia, vessel                                                         _____ ____          "flew no flag, and  had no stern markings indicating home port or          country").    And,  of  course, Ensign  Pulver  obtained  Captain          Gordon's permission before opening the hold.                     Second,  Singleton  claims  prejudice   from  counsel's          failure to challenge the  adequacy of the Miranda warnings.   See                                                    _______             ___          Miranda  v.  Arizona, 384  U.S. 436  (1966).   The  crew received          _______      _______          Miranda warnings just  prior to their transfer to  the DAUNTLESS,          _______          moments  after their arrests.   Although he did  speak with Coast          Guard personnel before being formally arrested, Singleton has not          identified any  evidence  illegally obtained  prior to  receiving          Miranda warnings.  Our review suggests but one possibility; viz.,          _______                                                     ____          Singleton's  admission that he was  "from the United States," see                                                                        ___          supra  note 3.  But the uncontroverted testimony of Ensign Pulver          _____          makes  clear that  Singleton volunteered  this admission.   Thus,          even assuming that Singleton was in "custody," this statement was          not made in response to interrogation.  See Miranda,  384 U.S. at                                                  ___ _______          467 (rule  applies to "in-custody  interrogations").  We  find no          colorable basis for a cognizable Miranda claim.                                             _______                    Third, Singleton faults counsel's failure to move for a          separate trial.  As a general  rule, joinder for trial is  proper          if issues of fact and law overlap and the practical benefits of a          joint  trial outweigh  each  defendant's interest  in a  separate          trial.  See, e.g.,  United States v. Arruda, 715 F.2d 671, 677-81                  ___  ____   _____________    ______          (1st Cir. 1983).   Singleton has not demonstrated  that counsel's                                          14          failure to press for a separate trial was outside the wide  range          of reasonable professional assistance.                      Significantly, codefendant McLeish unsuccessfully moved          for severance early  in the proceedings.  Like Singleton, McLeish          pursued a "hitchhiker" defense, claiming that he  had been picked          up serendipitously  by the MARILYN  E while  adrift at  sea.   In          light of the  lack of  success with which  McLeish's request  for          severance was met, we cannot say that trial counsel's performance          was  deficient under the Sixth  Amendment.  See  United States v.                                                      ___  _____________          Pellerito,  878 F.2d  1535, 1540  (1st Cir.  1985) (codefendants'          _________          failed efforts are relevant in assessing other counsel's decision          not to pursue similar tactics).  Indeed, the McLeish motion bears          all the  earmarks of  a stalking-horse strategy.   "Effectiveness          does  not require  that  counsel jump  through every  conceivable          hoop, or engage in  futile exercises." Id. (citing United  States                                                 ___         ______________          v. Cronic, 466 U.S.  648, 656 n.19 (1984) ("useless  charade" not             ______          required); United States v. Levy, 870 F.2d 37, 38 (1st Cir. 1989)                     _____________    ____          (similar)).  In any event, there has been no showing of prejudice          to Singleton resulting from the joint trial.           C.   Defaulted Claims          C.   Defaulted Claims               ________________                    Several additional claims advanced by  Singleton suffer          from various forms of  procedural default, and essentially repre-          sent attempts to recast  arguments already rejected in connection          with the "ineffective assistance"  claim.12  Singleton  attempts,                                        ____________________               12The  defaulted  claims include  an  attempt  to raise  the          groundless Miranda claim.  See supra p. 14.                      _______         ___ _____                                          15          to  no avail, see  Lopez-Torres v. United  States, 876 F.2d  4, 5                        ___  ____________    ______________          (1st Cir.), cert.  denied, 493  U.S. 979 (1989),  to revisit  the                      _____  ______          defaulted claim relating to improper joinder for trial, though it          was neither raised before  the trial court nor on  direct appeal.          Furthermore,  Singleton  challenges  his  360-month  sentence  as          having been based on a sentencing guideline determination that he          was responsible for possessing,  with intent to distribute, 3,750          pounds of marijuana, whereas  there was no evidence that  he knew          the weight, and no evidence that the bales lost at  sea contained          marijuana.  Not only was a substantially similar argument reject-          ed on direct  appeal, see  Doe, 921  F.2d at  347, but  "[i]ssues                                ___  ___          disposed of in  a prior appeal will not be  reviewed again by way          of a 28 U.S.C.   2255 motion," United States v. Dirring, 370 F.2d                                         _____________    _______          862, 864 (1st Cir. 1967), cited in Barrett  v. United States, 965                                    ________ _______     _____________          F.2d 1184, 1190 n.11  (1st Cir. 1992).  Additionally,  this argu-          ment  does not  appear  in the  section  2255 motion,  but  first          emerged in Singleton's supplemental  appellate brief.  See Dziur-                                                                 ___ ______          got  v.  Luther, 897  F.2d 1222,  1224  (1st Cir.  1990) (holding          ___      ______          claims not raised in section 2255  motion will not be reviewed on          appeal).  Finally, further review of Singleton's challenge to the          sufficiency  of the  evidence, addressed  and rejected  on direct          appeal,  Doe,  921 F.2d  at 346,  is  also foreclosed,  Tracey v.                   ___                                            ______          United States, 739 F.2d 679, 682 (1st Cir. 1984).           _____________          Affirmed.          Affirmed.          ________                                          16
