USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1725

RENALDO PLEDGER,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

No. 97-2119

SEAN DIXON,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

No. 97-2245

EDWIN CARMICHAEL,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

No. 97-2297

STEVEN WADLINGTON,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Chief Judge,

___________
Selya and Boudin, Circuit Judges.
______________

____________________

Renaldo Pledger,
________________

Edwin Carmichael
_________________

and

Steven Wadlington
__________________

memoranda pro se.

Sean Dixon on brief pro se.
__________
Donald K. Stern, United States Attorney,
________________
Assistant United

States Attorney,

and Kevin J. Cloher

________________

on brief for

2119.

____________________

February 5, 1988
____________________

appellee in

No.

Per Curiam.
__________

Renaldo

Pledger,

In

Sean Dixon,

joint

Edwin

trial,

petitioners

Carmichael

and Steven

Wadlington were each convicted of multiple

offenses stemming

from

their involvement

drug distribution

ring

in Boston, Massachusetts.

in

affirmed after rejecting

convictions and sentences.

a large-scale

On direct appeal, this court

a multitude of challenges

to their

See United States v. Whiting,

28

___ _____________

F.3d

1296 (1st

separate motions

advancing a

district

Cir. 1994).

Petitioners thereafter

for habeas relief

plethora of new

2253(c)(1).

of

and then

appealability

Petitioners

under 28 U.S.C.

claims.

court denied relief

certificate

_______

(CAP).

In each

have now submitted CAP

2255,

instance, the

declined to

See
___

filed

28

issue a

U.S.C.

requests to

this court.

In order to qualify for

a CAP, a habeas petitioner must

make "a substantial showing of the denial of a constitutional

right," id.
___

2253(c)(2)--i.e., a showing that the issues are

debatable among reasonable jurists, that a court could decide

_____

them in

a different

fashion, or that

they are

adequate to

deserve encouragement to proceed further, see, e.g., Barefoot

___ ____ ________

v.

Estelle,
_______

conclude

463 U.S.

that none

880,

of the

893

n.4

petitioners

(1983).

Because

has satisfied

we

this

standard, the CAP applications will be denied and the appeals

terminated.

Petitioners have presented

contentions, which we

will

first

address

an assortment of overlapping

have divided into two

pair

of

joint

categories.

challenges

to

We

the

convictions and sentences, and will then consider a number of

individual claims.

of,

or

are

Because most of the claims either consist

accompanied

by,

counsel

(IAC), and

assistance

of

unavailing

on the

whether they each

merits,

complaints

because

we need

are cognizable

of

not

ineffective

they

pause to

in the

all prove

consider

habeas context

or

whether any are subject to procedural default.

Joint Claims
____________

1.

withheld

All four

petitioners contend

notes of

witness interviews

that the

in

government

violation of

its

obligations under Brady v. Maryland, 373 U.S. 83

_____
________

the

Jencks Act,

18 U.S.C.

3500.

It is

several government

witnesses engaged in

prior to

which prosecutor

trial at

agent Murphy took handwritten notes.

rejected

Some

defense requests

undisputed that

debriefing sessions

Kelly

and DEA

special

During trial, the court

for disclosure of

such material.

time later, petitioners gained possession of notes that

the prosecutor had

Anser

(1963), and

Adams.

exculpatory

and

taken of one

Insisting

impeachment

that

interview with the

those

material

and

notes

were

witness

contained

otherwise

discoverable under the Jencks Act, petitioners argue that the

government was

remiss in not

turning over all notes

-4-

of all

witness interviews.

The district court justifiably concluded

otherwise.

The

Jencks Act

notes were never

grand

purview

claim is entirely

adopted by the witness and

jury testimony, they

only

if

unavailing.

did not involve

would fall within

they provided

account of what had been said.

As the

the statute's

"substantially verbatim"

18 U.S.C.

3500(e)(2).

Such

an

account must

reflect the

witness' own words

"fully and

without distortion."

Palermo v. United States, 360 U.S. 343,

_______
_____________

352

e.g., United States

____ ______________

(1959); accord,
______

1190,

1198 (1st

Cir. 1994),

The

notes

here

evidenced "substantial

the

prosecutor's

did

36 F.3d

117 S.

Ct. 519

cert. denied,
____________

(1996); United States v. Newton,

_____________
______

1989).

v. Neal,
____

891 F.2d 944, 954 (1st Cir.

not do

so.

Instead,

selection of material"

"own interpretations

were thus "not to be produced."

or

they

and contained

impressions" and

Palermo, 360 U.S. at 352-53;

_______

accord, e.g., United States v. Bennett, 75 F.3d

______ ____ ______________
_______

40, 47 (1st

Cir.) (reviewing such a determination for clear error), cert.

_____

denied, 117 S. Ct. 130 (1996).

______

Nor have petitioners

"favorable" and "material"

explained how the notes

were both

to the defense, United States v.

______________

Brimage, 115 F.3d 73, 79 (1st Cir.), cert. denied, 118 S. Ct.
_______
____________

321

(1997),

such

that

the

withholding

thereof

constitute a Brady
_____

violation.

It

suffices here to

that

"material"

if

there

evidence

is

-5-

is

"a

might

observe

reasonable

probability

defense,

that, had

the

different."

result

of

cert. denied,
____________

United States
_____________

disclosed and the extent

impeached

articulate

any

at

would

have

the

been

651 (1st

Ct. 1000

(1997) (quoting

U.S. 667, 682

(1985)); accord
______

432-41 (1995).

Especially

and Jencks Act material

that was

to which the witnesses in

question

trial,

theory

disclosed to

Blais, 98 F.3d 647,

_____

514 U.S. 419,

amount of Brady
_____

been

proceeding

117 S.

v. Bagley, 473
______

Kyles v. Whitley,
_____
_______

were

the

United States v.
_____________

Cir. 1996),

given the

the evidence

petitioners

demonstrating

have

such

"failed

to

reasonable

probability."

115

F.3d at

Blais, 98 F.3d
_____

at 651; accord, e.g., Brimage,

______ ____ _______

79 (finding evidence

noting degree to

to be

non-material after

which witness' character had

been "sullied

in cross-examination").

Moreover, the weight of the evidence

against

petitioners--which

each of

these

we described

at

length in the unpublished portion of our earlier opinion, see

___

Whiting, supra, slip

_______ _____

op. at 55-57 (Dixon),

61-62 (Pledger),

66-68

(Carmichael),

68-70

Brady
_____

violation in this regard harmless, see, e.g., Bennett,

___ ____ _______

(Wadlington)--would

render

any

75 F.3d at 47.

We

likewise disagree that the court erred in dismissing

these claims

without convening

a hearing

or examining

the

remaining witness

not

notes in camera.
_________

entitled to an evidentiary

A habeas

petitioner is

hearing where, as here, "his

allegations are 'vague, conclusory, or palpably incredible.'"

-6-

David v. United States, ___ F.3d ___, ___, 1998 WL 21848,

_____
_____________

*6 (1st Cir. 1998) (quoting

at

Machibroda v. United States, 368

__________

_____________

U.S. 487, 495 (1962)); accord, e.g., United States v. McGill,

______ ____ _____________
______

11

F.3d

223,

petitioners'

actually

225-26

(1st

claims were

produced, we

Cir.

1993).

unsupported by

cannot

fault

And

the

the

set of

district

decision to forgo examination of the others.

States
______

v.

Strahl,
______

590

F.2d

10,

(cautioning against sole reliance

14-15

because

notes

court's

Compare United
_______ ______

(1st

Cir.

1978)

on prosecutor's assurances

that interview notes were not covered by Jencks Act).1

1

2.

of

All

drugs

sentencing.

by

petitioners but Pledger challenge

for

which

They

failing to make

they

were

each

held

contend, inter alia, that

__________

the quantity

accountable at

the court erred

individualized findings in

this regard.

They

also

complain

of counsel's

matters, particularly in

the guidelines

appeal.

to

pursue these

light of a clarifying

amendment to

that was adopted

We perceive no

failure

during the pendency

of the

error; indeed, we rejected a related

set of arguments on direct appeal.

In order

each

to calculate the

petitioner

applicable base

was

quantity of drugs

responsible, so

as

for which

to

determine the

offense level, the sentencing

court engaged

____________________

1
1

Our rejection

merits disposes of
suggestion in

of the Brady/Jencks
_____
the subsidiary IAC

this regard

that the

Act claims

claims.

The

on the
further

prosecution engaged

intentional misconduct is totally without record support.

-7-

in

in

two-step

organization as

process.

a whole

It

first

had distributed

estimated

an average

kilograms of cocaine per week during its existence.

on the "relevant

that

conduct" provision in U.S.S.G.

the

of two

Relying

1B1.3, it

then multiplied this figure by

the number of weeks that each

petitioner

had been involved.

On direct appeal, petitioners

challenged

the

two-kilograms-per-week

estimate, contending

that it lacked evidentiary

1303-05;

support, see Whiting, 28 F.3d

___ _______

we disagreed, describing

the court's finding

at

as a

"conservative

estimate [that] left a fair margin of safety,"

id. at 1305.
___

Petitioners now argue that the court

attributing

that estimate

particularized

inquiries

foreseeable and

were within

to

each

into

of

them

what

the scope

erred by

without

more

quantities

of their

were

respective

agreements.

Petitioners' precise complaint is difficult to identify.

To the

extent they are alleging that the court automatically

saddled each of

them with the full amount

in the conspiracy

an

erroneous

without further inquiry,

legal standard,

they

are

of drugs involved

thereby applying

mistaken.

As

we

explained

in

the

earlier appeal,

responsible

at

sentencing

for

handled

or

anticipated handling,

conduct

rubric, for drugs

petitioners

'drugs

and,

"were

[they]

under

held

personally

the relevant

involved in additional

acts that
____

were reasonably foreseeable by [them] and were committed in

_____________________________________________________________

-8-

furtherance of the conspiracy.'"

______________________________

Whiting, 28
_______

F.3d at 1304

(emphasis added) (quoting United States v. Sepulveda, 15 F.3d

_____________
_________

1161,

1197

alleging

(1st Cir.

that the

unsupported

court's

below,

success.

and

To

no better.

Dixon and Wadlington)

Wadlington

See
___

Whiting,
_______

the extent

findings of

by the evidence (or that

contended), they fare

(Pledger,

1993)).2
2

are

foreseeability were

counsel should have so

Three of the

petitioners

did voice such

a challenge

pursued it

supra,
_____

they

on

appeal--all

slip op.

at

72-74.

without

More

important, there has been no showing how the court's findings

in this regard might possibly have constituted clear error.

Petitioners'

reliance on the

1992 revision of

1B1.3

(amendment 439) likewise proves unavailing.

this

amendment was clarifying in nature

been invoked on

direct appeal.

LaCroix, 28 F.3d 223, 227

_______

v.

It is true that

and thus could have

See, e.g.,
___ ____

United States v.
_____________

n.4 (1st Cir. 1994); United States

_____________

Carrozza, 4 F.3d 70, 74 n.2 (1st Cir. 1993).

________

to see how

much less

petitioners would have

how their

having failed

(which

was applied

benefited from doing

attorneys can be

to do so.

at

Both the

sentencing)

Yet we fail

thought derelict

1990 version of

and

the

1992

so,

for

1B1.3

version

____________________

2
2
stating

The presentence

reports applied

the same

standard--

that each petitioner was being "held accountable for

the drugs sold by the enterprise, that is, for the conduct of

others

in

furtherance

of

the

execution

of

the

jointly

undertaken conspiracy that was reasonably foreseeable by this

defendant, during the time of his involvement in the criminal
enterprise."

-9-

required that

relevant conduct be

And both required

undertaken

"reasonably foreseeable."

that it be "in furtherance

criminal activity."

1992 amendment did was elaborate

of the jointly

As here relevant,

what the

on this latter criterion by

explaining that "the court must first determine the

the

criminal

jointly

and

the particular

undertake (i.e., the

____

objectives

U.S.S.G.

Yet

The

activity

embraced

by

scope of the

the

agreed to

specific conduct

defendant's

agreement)."

1B1.3, comment. (n.2) (1992).

this merely fleshed

earlier version likewise

"within

defendant

scope of

the

scope of

the

1B1.3, comment. (n.1) (1990).

explained that

out the

preexisting standard.

had referred to

conduct being

defendant's agreement."

See
___

Prior to the amendment, we had

"the measure of a

defendant's accountability

for drug transactions in which he was not personally involved

is usually congruent with the scope of his agreement with the

other

participants

in

the

criminal

enterprise."

United
______

States v. Garcia, 954

______
______

since

indicated

F.2d 12, 16 (1st Cir. 1992).

that

"application

amendment], read as a whole,

note

the

1992

LaCroix, 28 F.3d at
_______

Most important, petitioners have offered no factual

support for the

"were

[of

appears to use 'in furtherance'

and 'within the scope' interchangeably."

227 n.5.

We have

assertion that their colleagues'

outside the scope

drug sales

of [petitioners'] agreement[s], or,

put another way, that those

transactions were other than

-10-

in

furtherance

of the

jointly

undertaken criminal

activity."

Id. at 228.3
3
___

Individual Claims
_________________

1.

Wadlington

possessing

5861(d).

was convicted, among other

offenses, of

an unregistered shotgun in violation of 26 U.S.C.

The

statutory definition of

"firearm" required

proof that the shotgun possessed two characteristics: that it

had a

barrel length of

less than

length of less than 24 inches, and

18 inches, or

an overall

that it could fire (or be

restored to fire) shotgun shells.

In its charge to the jury,

the court inadvertently omitted this definition--an oversight

that

neither

raised

the

side

matter

brought to

its

attention.

on direct

appeal

but

Wadlington

without success.

Subjecting the issue to plain-error scrutiny due to

of objection below, we

held that the error had

the lack

not caused a

"miscarriage of justice" or seriously affected "the fairness,

integrity or

public

reputation

of

judicial

proceedings."

Whiting, 28 F.3d at 1309 (quoting United States v. Olano, 507

_______
_____________
_____

U.S. 725,

736 (1993)).

In so concluding, we

observed that

____________________

3 A
3

trio of

subsidiary claims

Petitioners contend that the court

its

tentative findings before

likewise

miss the

mark.

failed to notify them

imposing sentence,

of

as called

for by

U.S.S.G.

otherwise.

6A1.3(b) (1990).

The record

indicates

They assert that the drug-quantity information on

which the court relied was inherently unreliable; we rejected

an identical claim on direct appeal.
1305.

And

petitioners

insist

requested an evidentiary hearing

that

See Whiting, 28 F.3d at

___ _______
counsel

should

prior to sentencing;

have
under

the circumstances, we find neither substandard performance by

counsel nor prejudice resulting therefrom.

-11-

the

"undisputed

evidence"

showed

that

the

statutory

definition had

that

the

been met--meaning

omission had

innocent man."

that there

"resulted

complaining of

omission.

that

An IAC claim

of an

is

to

object to

the

requires a showing of both deficient

prejudice element as

there

conviction

issue by means of an IAC

counsel's failure

performance and prejudice.

the

risk"

Id.
___

Wadlington now raises the same

claim,

in the

was "no

The Supreme Court

has described

follows: "The defendant

reasonable

probability

that,

must show

but

for

counsel's unprofessional errors, the result of the proceeding

would

have been

probability

outcome."

different.

sufficient

Strickland
__________

to

v.

reasonable probability

undermine

Washington,
__________

confidence

466

U.S.

is a

in

the

668,

694

(1984).

No

such

reasonable

probability

has

been

demonstrated; to the contrary, as we earlier concluded, it is

"clear that

the jury

would readily

proper instruction been given.

2.

Dixon

counsel.

guilty

complains

Specifically,

to

his

of

to

trial

mistakenly

informed

convicted" had

improper

advice

he contends that he

on

he

his

conspiracy

could

not

do

from

charge

charge,

so.

while

but

Since

was

this

form, dismissal

See David, ___ F.3d at ___, 1998 WL

___ _____

-12-

trial

wished to plead

distribution

allegation is presented in purely conclusory

was appropriate.

Whiting, 28 F.3d at 1309.

_______

substantive

proceeding

have

at *6.

Moreover, even if this allegation were true, Dixon has failed

to

explain,

prejudiced.

and we

are

unable

to

perceive, how

he

was

The indictment charged (and the evidence showed)

that his distribution offense was committed in furtherance of

the conspiracy.

As a

result, a

guilty plea to

the former

would only have augmented the proof of his involvement in the

latter.

Nor would there

have been any discernible effect on

Dixon's

sentence;

participation in the

the

considerable

evidence

conspiracy meant that,

been acquitted on the conspiracy count,

of

even if he

his

had

the relevant-conduct

provision might well have yielded the same outcome.

3.

Wadlington criticizes his attorney for advising him

not to take the witness

coercion,

testify

stand.

Yet when "[u]naccompanied by

legal advice concerning

exercise of the

right to

infringes no right ... but simply discharges defense

counsel's

ethical responsibility to

the accused."

Lema v.
____

United States, 987 F.2d 48, 52 (1st Cir. 1993); accord, e.g.,
_____________
______ ____

Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir. 1996).

_________
_____________

Wadlington

has made

no allegation

of

coercion and,

given

Wadlington's criminal history, counsel's advice can hardly be

called into question.

4.

Carmichael argues that

his attorney was

effectively

abandoning a

particulars

concerning his money

notes, we

declined

pretrial

on direct

motion

bill

laundering charge.

appeal

-13-

for

remiss in

to address

an

of

As he

issue

involving

that

motion

because of

Whiting, slip op. at 66.

_______

counsel's

action.

See
___

Yet no prejudice thereby ensued; we

went on to observe that "[h]ad counsel properly preserved the

issue,

the

government's

provision

of

the

Western

Union

transfers would be sufficient to avoid any actual surprise or

prejudice."

Id.
___

the extent of

Carmichael's more general complaints about

preparation performed by counsel

are likewise

unavailing.

5.

Pledger objects to the

counsel.

Specifically,

pursue a

claim that the

which the petit

performance of his appellate

he argues

that

counsel failed

to

process of selecting

counties from

jury pool was chosen operated

in a racially

discriminatory manner.

Yet the determination of which issues

have

the best

entails

chance

the exercise

of

of

succeeding

on

professional

obviously

judgment.

Judicial

scrutiny

thereof "must

466 U.S.

at 689--particularly where, as here, there has been

no

showing that

the

be highly

appeal

claim

deferential," Strickland,
__________

has any

colorable

merit.

No

ineffective assistance has been demonstrated.4

4

6.

Pledger challenges the district court's alternative

holding

that his petition was time-barred under AEDPA's one-

year statute of

limitations.

He contends

that the "mailbox

petitioners

also complain

____________________

4
4

Several

of

the other

counsel's failure to pursue certain

claims on appeal.

of

As we

have determined each of those underlying claims to be without

merit,

the attorneys'

conduct

in

this

regard

cannot

be

faulted.

-14-

rule" governing the timing of a notice of appeal filed by

inmate confined in

an institution, see Houston

___ _______

U.S. 266 (1988); Fed. R.

to

habeas petition

rejected his

various

an

v. Lack, 487
____

App. P. 4(c), should likewise apply

filed

by

such

an inmate.

claims

on

the merits,

we

Having

need

not

address this

AEDPA

is

conviction

petition

argument.

inapplicable

Pledger's further

whenever

the

contention--that

underlying

criminal

preceded its effective date, even when the habeas

was filed thereafter--is

meritless.

See
___

Lindh v.
_____

Murphy, 117 S. Ct. 2059 (1997).

______

Conclusion
__________

We need go no further.5
5

district

For these reasons, we share the

court's assessment that none of the petitioners has

made a substantial showing of the denial of

right.

a constitutional

Their CAP applications are therefore denied.

The
applications
of petitioners
Pledger,
Dixon,
________________________________________________________

Carmichael and Wadlington for a certificate of appealability

_____________________________________________________________

are each denied, and their respective appeals are terminated.

_____________________________________________________________

____________________

5
5

All claims not

and rejected.

mentioned herein have

None requires comment.

-15-

been considered