USCA1 Opinion

October 8, 1992

[NOT FOR PUBLICATION]

____________________
No. 92-1276
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL J. DONLON,
Plaintiff, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Campbell, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Daniel J. Donlon on brief pro se.
________________

Jeffrey R. Howard, United States Attorney, and Peter E. Pap

__________________
_____________
First Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
___________
district
aside

affirm the

court denying appellant's

or correct

reasons stated in

sentence under

The

Strickland v.
__________

an

present

the

vacate, set
2255

for the

carefully considered

not guarantee

only the assistance of

the circumstances
below

28 U.S.C.

of

We add only the following.

Constitution does

winning defense,

judgment

petition to

the district court's

order of February 6, 1992.

"f[a]ll

We

at the

objective

Washington, 466
__________

counsel that, under

time of

standard

petitioner a

of

U.S. 668, 698

trial, does

not

reasonableness."
(1984); United
______

States v.
______
"Failure

Natanel,
_______
to make

performance

938

F.2d

302,

the required

or

sufficient

Cir.

1991).

either deficient

prejudice

defeats

an

Strickland, 466 U.S. at

__________

Petitioner bears the burden to show the entitlement to

an evidentiary

hearing, Barrett
_______

1184, 1193 (1st Cir.

both

(1st

showing of

ineffectiveness [of counsel] claim."

700.

309

the

"prejudice"

the

Strickland,
__________

"highly
id.
___

at

components of

the

Strickland, 466 U.S. at 687.

__________

We find, in concert
under

965 F.2d

1992), and must affirmatively establish

"performance" and

Strickland analysis.
__________

v. United States,
_____________

with the district court, that,

deferential"
689,

scrutiny

ordained

petitioner's proffers

failed

by
to

"overcome the presumption that . . . the challenged action[s]

'might
(quoting

be considered
Michel
______

sound

trial strategy.'"

v. Louisiana,
_________

-2-

350

U.S.

Id.
___

91, 101

at 698
(1955)).

Since

appellant does

conduct resulted

not

contend that

from lack

his lawyer's

of a thorough

trial

investigation, or

neglect or ignorance, tactical decisions, such as not calling

particular defense witnesses
here, are

in the circumstances

among the "plausible options"

unchallengeable."
Strickland,
__________

466

Barrett,
_______
U.S. at

965

690).

that are "virtually

F.2d
As

at

1193

such, they

second-guessed on collateral review."

presented

Id. at
___

(quoting
"cannot be

1194 n.19; see

___

also Natanel, 938 F.2d at 310.

____ _______
Regarding the
allow him
read

to testify

at his trial,

in light of the record,

defendant, upon
testify.
1987),

claim that his

found

to

petitioner's affidavit,

suggests no more than that the

advice of counsel, made the

In Siciliano v.
_________
we

attorney refused

Vose, 834
____

decision not to

F.2d 29, 31

defendant's conclusory

(1st Cir.

collateral relief

claims that his attorney prevented him from testifying at his

trial not

supported by

affidavit that
and that he
merely

states

conclusions
support.

(1st Cir. 1984).

demonstrate that
abridged.

Here, petitioner's

his attorney "insisted" that

himself "insisted"

detailed factual
75, 77

specific facts.

his

that he

which

are

he not testify,

wanted to

totally lacking

United States v. Butt,

______________
____
So read, petitioner has

constitutional right

Siciliano, 834 F.2d at 31.

testify,

to

in

731 F.2d
failed to

testify

was

Nothing in the record

_________
"provide[s] any reasons for concluding that any such specific

-3-

factual allegations would be credible."

_____
added).

Nor

suggest, that
See
___

does

petitioner otherwise

show,

defense counsel overlooked

United States
_____________

1991).

Id. at 31 (emphasis
___

v. Porter,
______

924 F.2d

Consequently, the decision

much

a viable

defense.

395, 397

by the trial

less

(1st Cir.
judge, who

was thoroughly familiar with all the proceedings in the case,

not

to

hold an

Ouellette
_________

evidentiary

v. United States,
_____________

hearing

was entirely

862 F.2d 371,

proper.

377-78 (1st Cir.

1988).
The
is not

district court correctly concluded that "there

a reasonable

would have
now says
presented

probability that the

been different
[his] attorney
to

entitled to no

it,"

if the evidence
...

and that,

relief.

should have
accordingly,

Rule 4(b), Rules

jury's conclusion
which petitioner
offered had
petitioner
governing

been
was
2255

proceedings

("If it

plainly appears

motion and any annexed exhibits and the

the

case that the

movant is not

from the

face

of the

prior proceedings in

entitled to relief

in the

district court, the judge shall make an order for its summary
dismissal.").
The judgment of the district court is affirmed.
________

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