
USCA1 Opinion

	




        March 27, 1996          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2144                                    UNITED STATES,                                      Appellee,                                          v.                                  PATRICK W. TRACY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Patrick W. Tracy, on brief pro se.            ________________            Jay  P.  McCloskey,   United  States  Attorney  and  Margaret   D.            __________________                                   _____________        McGaughey, Assitant U.S. Attorney.        _________                                 ____________________                                 ____________________                      Per Curiam.   Appellant Patrick  Tracy appeals  the                      __________            denial by the  United States District Court for  the District            of  Maine of Tracy's motion  to vacate, set  aside or correct            his  sentence pursuant  to  28 U.S.C.     2255.   Tracy  also            alleges  that the court erred  in denying his  request for an            evidentiary hearing.    We  affirm  the denial  of  both  the            petition and  the hearing, essentially for  the reasons given            by the  magistrate judge  in his recommended  decision, dated            August 16, 1995.   Only one of Tracy's claims  merits further            comment.                 During Tracy's trial, three articles appeared in a local            newspaper referring to Tracy's  previously having been  found            not guilty  by reason of insanity  in a different  case.  The            appearance  of the  articles was  noted by  the court  at the            time.    However, the  prosecutor  and  the defense  attorney            agreed that  it was  better not to  question the jury  on the            matter  since  to do  so might  call  undue attention  to it.            Tracy alleges that the  failure of his counsel to  request an            examination of the jury constituted ineffective assistance of            counsel.  We disagree.                   The record makes clear that, both prior to and after the            articles' appearance, the  court specifically instructed  the            jury  not to  listen  to or  to read  accounts of  the trial.            Absent  evidence  to the  contrary,  jurors  are presumed  to            follow a  court's instruction,  United States v.  Boylan, 898                                            _____________     ______            F.2d  230, 263 (1st Cir.), cert. denied, 498 U.S. 849 (1990),                                       ____  ______            and no evidence existed at  the time, nor has any  since been            presented,  that  any member  of the  jury  was aware  of the            articles   in  question.    In  such  circumstances,  Tracy's            counsel's  decision  not to  request  an  examination of  the            jurors  may reasonably  be  understood as  sound strategy  to            avoid calling undue  attention to the  articles.  See  United                                                              ___  ______            States  v. Anello, 765 F.2d  253, 259 (1st  Cir.) (absent any            ______     ______            indication  that jurors  were  aware of  incident, court  was            within  its  discretion in  not  drawing attention  to  it by            inquiring about incident), cert. denied, 474 U.S. 996 (1985).                                       ____  ______            As such it clearly "falls within the wide range of reasonable            professional  assistance" and  thus  precludes  a finding  of            ineffective assistance.   Strickland v. Washington,  466 U.S.                                      __________    __________            668, 689 (1984).                 Tracy also claims  that his attorney  failed to ask  the            court  to examine the  jury because the  attorney was himself            the source of  the newspaper  story and feared  that, if  the            issue were pursued, he  would be discovered to  have violated            District of Maine Local Rule 40(a)(4).  This rule prohibits a            defense attorney from releasing  information during trial "if            there is a reasonable likelihood that such dissemination will            seriously interfere with  a fair trial."   Tracy alleges that            the resulting  conflict of interest between  the attorney and            himself constitutes constitutionally ineffective assistance.                                         -3-                 To show a conflict  of interest, "a defendant  must show            that  (1) the lawyer  could have pursued  a plausible defense            strategy or tactic and (2) the alternative strategy or tactic            was  inherently in conflict with or not undertaken due to the            attorney's other  interests or loyalties."   United States v.                                                         _____________            Soldevila-Lopez, 17  F.3d 480, 486  (1st Cir. 1994).   Courts            _______________            have  recognized that a conflict  of interest may result when            pursuit of  a  client's interest  would lead  to evidence  of            attorney malpractice.  See United States v. Ellison, 798 F.2d                                   ___ _____________    _______            1102, 1106-08 (7th  Cir. 1986), cert.  denied, 479 U.S.  1038                                            ____   ______            (1987)  (defendant  had  accused  attorney  of  malpractice);            Mathis  v. Hood, 937 F.2d 790, 795 (2d. Cir. 1991) (defendant            ______     ____            had filed grievance with  disciplinary committee).  A showing            of  an  actual conflict  of  interest  obviates the  need  to            demonstrate prejudice  and constitutes a per  se violation of                                                     ___  __            the Sixth Amendment.  Soldevila-Lopez, 17 F.3d at 486-87.                                    _______________                 Even if we credit Tracy's  allegations, he has not  made            the requisite  showing that his attorney's failure to seek an            examination  of  the  jury  was  due to  other  interests  or            loyalties.   First,  Tracy  has not  explained how  examining            whether  or not  the jury  had been  exposed to  the articles            would  have led  to the  further examination  of who  was the            source  of the articles.  Moreover,  at the time the issue of            the articles arose, Tracy's attorney had not been  accused of            any wrongdoing.   This  fact distinguishes Tracy's  case from                                         -4-            both  Ellison and  Mathis.    In  the  absence  of  any  such                  _______      ______            accusation  of the  attorney or  other evidence  of a  per se                                                                   ___ __            violation of the  Sixth Amendment, the charge  of conflict of            interest  is   simply  too   "speculative"   to  support   an            ineffective  assistance  of  counsel claim.    See Soldevila-                                                           ___ __________            Lopez, 17 F.3d at 486-87.            _____                 Affirmed.  See 1st Cir. Loc. R. 27.1.                 ________   ___                                                                                                                                                                                                                          -5-
