USCA1 Opinion

March 18, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1671

ORLANDO ESPINOSA-SANCHEZ,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Boudin and Stahl, Circuit Judges.
______________

____________________

Orlando Espinosa-Sanchez on brief pro se.

________________________
Guillermo Gil, United
______________

States Attorney,

Rosa E. Rodriguez-Ve
_____________________

and Nelson Perez-Sosa, Assistant United States Attorneys, on brief

_________________
appellee.

____________________

____________________

Per Curiam.
__________

After carefully reviewing the

record

and

the

parties' briefs,

district

court for

Opinion and Order.

1.

hearing

on

we

affirm

essentially

the

judgment of

the

stated in

its

the reasons

We add the following comments.

The district

appellant's

court was not required to

claim that

his

attorney

hold a

provided

ineffective assistance by failing to call as witnesses two of

appellant's codefendants.

the affidavits

either

codefendant

appellant.

knew

never

of these

Conspicuously absent

codefendants is any

would

have

testified

Also missing are averments

from both of

statement that

on

behalf

of

that appellant never

about the cocaine on board the SHEME and that appellant

had

affidavit is

trial that

been

told

about

the

drugs.

Indeed, neither

inconsistent with the government's

appellant was part

of the conspiracy

position at

to possess

with the intent to distribute the cocaine.

the

rest of the allegations

conclusions

appellant draws

"self-interested

Thus, even taking

in the affidavits

as true, the

from these facts

are basically

characterizations."

See United States v.

___ ______________

McGill, 11 F.3d 223, 225 (1st Cir. 1993) (in deciding whether
______

to

hold

hearing,

petitioner's factual

"conclusory

the

district

averments as

allegations,

court

true but need

self-interested

[or] discredited inventions").

-2-

must

take

not credit

characterizations

Finally,

the case

relies, United States

______________

upon which

v. Yizar,
_____

1992), is not to the contrary.

unlike

here, that

defendant

the

956

F.2d 230

(11th

Cir.

In Yizar, there was no doubt,

_____

codefendant actually

was innocent.

Here, in

had said

contrast,

independent corroboration that Estupinan

possessed exculpatory

appellant primarily

there is

that

no

or Passos-Paternina

evidence or that appellant

even named

them as

their

potential witnesses.

affidavits hardly

Moreover, the

amounts

to a

information in

direct statement

of

appellant's innocence.

2.

Appellant's

claim that his

attorney prevented

him from taking the stand is supported by only his allegation

that

his attorney

testify.

This

led

him to

believe

that he

is insufficent, without more,

district court to hold an evidentiary hearing.

Vose,
____

834 F.2d

states

only

testify

on

defendant's

petition).

29, 31

that

his

(1st Cir.

counsel

own

refused to

behalf is

entitlement to

1987) (an

allow

insufficient

a hearing

on his

could

not

to require the

Siciliano v.
_________

affidavit that

defendant

to

to

establish

habeas corpus

See also Underwood v. Clark, 939 F.2d 473, 475-76

___ ____ _________
_____

(7th Cir.

1991) (a "barebones assertion"

that a defendant's

attorney would not let him testify is "too facile a tactic to

be

allowed

to

succeed";

greater

substantiation are necessary).

-3-

particularity

and

some

Again,

relies

the

cases upon

do not support his

v.Walker, 772
______

which

position.

F.2d 1172 (5th

appellant primarily

In

one, United States

_____________

Cir. 1985) (a

direct appeal),

the defendant had told his attorney that he wished to testify

and the

attorney had

filed a motion

allow defendant to take the stand.

the

trial court

motion.

v.

Id. at 1176, 1185.

___

Butts,
_____

630

motion), there

and

had abused

F.Supp. 1145

testify on

case to

The court determined that

its discretion

in

denying the

In the other case, United States

_____________

(D.

Me.

was independent evidence

counsel's testimony

demanded to

to reopen the

1986)

behalf.

trial

-- courtroom scenes

-- that defendant

his own

(a new

consistently had

Id.
___

at 1146.

As

noted

above,

appellant's

there

is

no

allegation that

independent

his attorney

corroboration

told him

of

that he

could not testify.

3.

The remainder

of appellant's claims

raised below and therefore will

See Knight v.
___ ______

not be addressed on

United States, 37 F.3d 769,

_____________

were not

appeal.

772 n.2 (1st Cir.

1994).

The judgment of the district court is affirmed.

________

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