UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: May 26, 1988.
UNITED STATES OF AMERICA
CARMELO RAMOS-LOPEZ, APPELLANT
Appeal from the District Court of the Virgin Islands, Division of St. Thomas and St. John, Crim. No. 77-00169 [§ 2255]
Appellant Carmelo Ramos-Lopez appeals from the order of the district court denying his motion under 28 U.S.C. § 2255 (1982) challenging the legality of this conviction in 1979 on two counts of distributing heroin. See 21 U.S.C. § 841(a) (1982).*fn1 Appellant asserted in his motion that he was denied effective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982).
In this appeal, appellant argues that the district court erred by failing to hold an evidentiary hearing on each of the three points raised by appellant's motions. Our standard of review is whether the district court abused its discretion. Government of the Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir. 1984).
First, appellant contends that his attorney failed to object to crucial evidence that the government introduced in rebuttal.
The government's case in chief against appellant was based on the testimony of a paid informant who, on two occasions, under the supervision of federal narcotics agents purchased heroin from appellant. One of the agents, under cross-examination during the government's case, stated that prior to the first drug sale the body search of the informant included feeling "around his belt, in different areas, under armpits; a regular search." The informer was also searched before the second sale.
Appellant testified in his own defense that he had not sold heroin to the informant but rather that on each occasion the informant had come to his house, asked to use a syringe, pulled heroin from a zippered compartment in his own belt, wrapped the remaining heroin in aluminum foil, and then put the package in his pocket. The government, in rebuttal, recalled as a witness the narcotics agent handling the case. The agent testified that on the date of the first sale the informant was not wearing a belt and that on the second date the informant was wearing a plain leather belt.
Appellant in his motion asserts that, despite a sequestration order, the narcotics agent was in the courtroom during appellant's testimony and yet appellant's counsel failed to object to the agent's testifying in rebuttal. Appellant asserts that this testimony was crucial to his conviction because it bolstered the credibility of the informant and destroyed his own because it negated his version with respect to the belts the informer was wearing. The district court accepted for decision purposes the claim that the agent was in the court room during appellant's testimony. It ruled, however, that on the basis of the entire record it could ascertain no harm stemming from counsel's failure to object to the rebuttal testimony.
Appellant's argument reduces itself to the contention that the agent was able to tailor his rebuttal testimony on the basis of having heard the testimony of the appellant.
We note at the outset that appellant does not attack the government's case in chief which clearly established that the informer was searched on both occasions. The appellant only challenges as being prejudicial the agent's testimony in rebuttal that one one of the occasions the informant was not wearing a belt and on the other occasion was wearing a plain leather belt. But this evidence came after the government's "pat-down" evidence in its case in chief. Thus, the issue of possession of drugs by the informer was substantially in issue at the close of appellant's case and thus before the rebuttal testimony was presented. To the extent the agent refined his testimony on rebuttal, although somewhat prejudicial, he did not unduly distort the fundamental credibility issue.
Our scrutiny of counsel's performance is highly deferential. Strickland v. Washington, 466 U.S. 668, 689 (1984). It is strongly presumed that counsel's conduct constituted effective assistance. Id. Furthermore, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Given the standard of review of counsel's performance imposed by Strickland, the discretion vested in the trial court as to the admissibility of evidence even following a violation of a sequestration order, see Pickel v. United States, 746 F.2d 176, 182 (3d Cir. 1984), and our review of the entire record, we conclude that the failure of appellant's counsel to object to the admissibility of the agent's testimony on rebuttal, to seek judicial comment to the jury on the matter, or to have pointed this out himself was not so egregious that the result would have been different but for the errors. Thus, the failure of the district court to hold an evidentiary hearing on this record did not constitute an abuse of discretion.
Second, appellant alleges that on the day of his trial his counsel informed him that two people who were listed as witnesses for appellant were no longer in the Virgin Islands and that it would therefore be of no use to subpoena them. Appellant claims that these two potential witnesses were in the Virgin Islands throughout the relevant period. His attorney's failure to call these witnesses, appellant claims, deprived him of competent legal representation. The district court dismissed this contention, noting that appellant offered no proof of the testimony these witnesses would have given and that it was therefore impossible to determine whether such testimony would have been central to appellant's defense.
Appellant does not dispute the court's reasoning but instead contends that the court should have returned the motion to him to be amended or should have granted an evidentiary hearing despite appellant's poor drafting of his motion. See 28 U.S.C. § 2255 rule 2(d). Given the total absence of evidence relating to the essence of the testimony of these potential witnesses or the relevance of this testimony to appellant's defense, we conclude that the order of the district court did not constitute an abuse of discretion.
Finally, appellant contends that his counsel advised him not to appeal, thus causing him to lose his right to appeal. Appellant concedes that the sentencing court informed him of his right to appeal independent of his counsel, yet he maintains that the key issue is that his counsel advised him not to appeal. The various cases cited by appellant do not support the proposition that, when the client has been advised of his right to appeal by the court, counsel's merely advising a client not to pursue an appeal, without more, can constitute ineffective assistance of counsel. Given that appellant was advised of his right to appeal, we conclude that the district court did not err in dismissing this contention without holding an evidentiary hearing.
Accordingly, the order of the district court will be affirmed.
EDWARD R. BECKER, Circuit Judge, dissenting in part.
Title 28 U.S.C. § 2255 provides that "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon."*fn1 With that precept in mind, I join in Parts II and III of the majority opinion, but I cannot join the holding in Part I that Ramos-Lopez is not even entitled to a hearing on his ineffective assistance claim.
On the basis of the record before us, I concede that the majority may well be correct that the failures of defense counsel were "not so egregious that the result would have been different but for the errors." Maj. Op. Part I, typescript at . See Strickland v. Washington, 466 U.S. 668 (1984). In may view, however, the files and records of the case are far from establishing "conclusively that the prisoner is entitled to no relief." I therefore believe that the district court should have held a hearing to explore Ramos-Lopez's not-insubstantial claims of ineffective assistance of counsel.*fn2 See Government of Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir.) ("the court must order an evidentiary hearing to determine the facts 'unless the motion and filed and records of the case conclusively show that the prisoner is entitled to no relief.'") (quoting United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980)) (emphasis added), cert. denied, 469 U.S. 829 (1984); Flippins v. United States, 747 F.2d 1089, 1092 (6th Cir. 1984) (where petitioner's allegation are not "'palpably incredible,'" or "'patently frivolous'" he is entitled to an evidentiary hearing) (quoting Blackledge v. Allison, 431 U.S. 63, 76 (1977)).
The government's case depended primarily on the testimony of an informant, Eric Johannes, who had just come off a methadone program. Johannes was the only one present, other than Ramos-Lopez, during the sale. Ramos-Lopez denied the charge; his defense was that he was framed. He testified that it was Johannes who produced the heroin - from a zippered belt. Therefore, the rebuttal testimony of the non-sequestered government agent that Johannes was not wearing a belt on the date of the first sale and that he was wearing a "plain leather belt" at the time of the second sale might well have tipped the credibility balance.*fn3 Under these circumstances, it is clear to me that Ramos-Lopez's counsel could be found ineffective for three reasons:
First, she should have requested that the agent be sequestered when she put Ramos-Lopez on the stand. Presumably, she knew the Ramos-Lopez would raise the defense of the zippered belt, and she should have known that the agent might be called in rebuttal.*fn4
Second, I would have expected competent counsel to have sought comment by the court to the jury in the charge, explaining that the jury, in assessing the agent's credibility, could consider the fact that the agent remained in the room during (and probably heard) defendant's testimony.*fn5 See e.g., United States v. Binetti, 547 F.2d 265, 269 (5th Cir. 1977), rev'd on other grounds, 552 F.2d 1141 (5th Cir. 1977), and under cases cited in 3 J. Weinstein & M. Beyer Weinstein's Evidence para. 615 at 615-22 n.2 (1987).
As I noted at the outset, the problem with the appeal is that of Strickland causation. But even if the majority is, in ultimate essence, correct that the outcome would have been no different but for the ineffective assistance, this determination is far from conclusive, hence I cannot agree, under the circumstances I have described, that the district court properly exercised its discretion by failing to conduct a hearing. See, e.g., Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1081-82 (3d Cir. 1985) (remanding for hearing on petitioner's ineffective assistance claim to determine whether counsel's failure to object to certain testimony was a tactical decision; court leaves Strickland issue for post-hearing review, if still necessary). That i cannot say with any confidence what a hearing would have revealed or what additional light it would have shed on the causation question does not undermine this view, for Congress has decreed that only in the clearest cases may the district court dispense with a hearing. This was not such a case, hence I respectfully dissent.