Lema v. U.S.

Decision Date04 January 1993
Docket NumberNo. 92-2087,92-2087
Citation987 F.2d 48
PartiesCharles D. LEMA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Christopher W. Dilworth, Falmouth, ME, for petitioner, appellant.

F. Mark Terison, Portland, ME, Asst. U.S. Atty., with whom Richard S. Cohen, Washington, D.C., U.S. Atty., was on brief, for respondent, appellee.

Before TORRUELLA and CYR, Circuit Judges, and BOWNES, Senior Circuit Judge.

CYR, Circuit Judge.

Charles Donald Lema, convicted of various drug charges, appeals the dismissal of his petition for postconviction relief under 28 U.S.C. § 2255. Lema asserts that his attorney was ineffective, his trial was tainted by prosecutorial misconduct, and his sentencing proceeding was infected by factual error. We affirm.

I BACKGROUND

In 1989, following a federal undercover operation, Lema was indicted on two counts of conspiring with Raymond Souza to distribute cocaine to Alex Hood, a DEA informant, and on two related counts of aiding and abetting Souza's cocaine distributions. The first brace of counts charged that on December 15, 1988, Lema aided and abetted Souza in the sale of one kilogram of cocaine to Hood [the "December transaction"]. The second brace of counts charged that on January 25, 1989, Lema, Souza, and a third man, Alberto Monsalve-Zapata, sold three kilograms of cocaine to Hood and another undercover agent, Michael Bansmer, as part of a ten-kilogram transaction negotiated by Souza [the "January transaction"]. The government does not dispute that Souza took the most active role in arranging and consummating these transactions; however, it suggests that Lema's culpability was reasonably inferable from his presence, with Souza, throughout both transactions, and from certain telltale statements made in the presence of undercover officers, indicating Lema's knowing participation in the distribution scheme. 1

Lema pleaded not guilty to all charges. Prior to trial, he discharged his court-appointed counsel and retained David Pomeroy, Esquire. Lema met with Pomeroy several times, and emphatically expressed his desire to testify at trial. 2 In furtherance of Lema's stated desire to testify, Pomeroy filed a motion in limine to preclude cross-examination about Lema's prior criminal conviction for interstate transportation of stolen property. The motion was denied on August 7, 1991.

Trial began the next day. At trial, the defense contended that though Lema may have been at the scene of the drug transactions, he neither actively participated in, nor was he aware of, Souza's cocaine dealings on those occasions. The government's case was based largely on the testimony of Hood and Bansmer, who testified to Lema's presence at the scene of the drug exchanges. The purport of their testimony was that it would have been virtually impossible for Lema not to have known that Souza was conducting drug transactions on those occasions. At the close of the government's case, Lema conferred with Pomeroy and again expressed his desire to testify. Pomeroy no less emphatically advised Lema that the government's case was weak and that--in light of the denial of the motion in limine--Lema's testimony would expose him to cross-examination concerning his prior conviction, would lose the sympathy of the jury, and therefore would be unwise. An argument ensued, witnessed by courtroom observers; Lema did not testify. Pomeroy then recalled one witness, a DEA agent who had attempted to record the December drug transaction but failed to capture Lema's voice on tape. The defense rested.

At closing argument, the prosecutor acknowledged that Lema said little during the course of the two drug transactions, but urged the jury to infer Lema's knowledge of Souza's drug dealings, and Lema's intent to participate in the drug distribution scheme, from the fact that Lema had been present and remained silent during both transactions. Lema was convicted on all counts.

Thereafter, Lema, acting pro se, moved for a new trial, accusing Pomeroy of ineffective assistance. At Lema's request, Pomeroy withdrew, and successor counsel was appointed to represent Lema at sentencing. The district court dismissed Lema's motion for new trial as untimely. The court sentenced Lema to 135 months in prison. We affirmed Lema's conviction on direct appeal. See note 1 supra.

Undaunted, Lema moved for vacation of sentence and new trial under 28 U.S.C. § 2255. The district court summarily denied four of Lema's habeas claims but reserved judgment on the fifth, which alleged that Pomeroy prevented him from testifying. After an evidentiary hearing, a magistrate-judge recommended denial of the ineffective assistance claim. The district court thereupon denied the section 2255 petition in its entirety.

II DISCUSSION

This appeal has two parts: a formal appeal, filed by appellate counsel, asserting ineffective assistance by trial counsel; and a supplemental pro se brief, raising claims of prosecutorial misconduct and sentencing error. We address each in turn.

A. Ineffective Assistance of Counsel.

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). But "[t]he Constitution does not guarantee a defendant a letter-perfect defense or a successful defense; rather, the performance standard is that of reasonably effective assistance under the circumstances then obtaining." United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir.1991) (citation omitted), cert. denied, --- U.S. ----, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992). A petitioner bears a very heavy burden on an ineffective assistance claim. The habeas court must "evaluate the [challenged] conduct from counsel's perspective at the time," Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, considering "the totality of the circumstances before it," Perron v. Perrin, 742 F.2d 669, 673 (1st Cir.1984), and making "every effort ... to eliminate the distorting effects of hindsight," Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. It "must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. (citation omitted). Moreover, the court must not only find that defense counsel's performance was deficient, but that it was so prejudicial as to undermine confidence in the outcome of the trial, see id. at 693-94, 104 S.Ct. at 2067-68, and the fundamental fairness of the result. Lockhart v. Fretwell, --- U.S. ----, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

The burden is on the petitioner to demonstrate ineffective assistance by a preponderance of the evidence. See Myatt v. United States, 875 F.2d 8, 11 (1st Cir.1989); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 129 (1978). Where a petition "(1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case," DiCarlo, 575 F.2d at 954, summary dismissal is appropriate. Moreover, "even a section 2255 petition predicated on specific assertions of fact allegedly supported in the record may be dismissed summarily by the district court," Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir.1992), provided "the district court can ... 'test' the ... allegations by assuming arguendo their truth, and then assessing their sufficiency in light of the relevant constitutional standards and the record." Id., quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir.1974); see also United States v. Butt, 731 F.2d 75, 77 (1st Cir.1984).

1. The Alleged Prevention of Lema's Testimony.

Pomeroy prevailed in the argument over whether it would be advisable for Lema to testify. Lema now claims that Pomeroy's advice in effect prevented Lema from testifying, and amounted to ineffective assistance of counsel, see United States v. Teague, 953 F.2d 1525, 1532, 1534 (11th Cir.) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). The government responds that Lema knowingly and voluntarily accepted Pomeroy's advice, and must, in effect, live with the consequences.

a. The Right to Testify.

We assume, without deciding, that the constitutional right to testify in one's defense is "fundamental," and, as such, may not be waived by counsel on the defendant's behalf, regardless of the soundness of any strategic or tactical considerations. 3 It is unnecessary to address the underlying issue, as we conclude that Lema, on advice of counsel, knowingly and voluntarily, if reluctantly, refrained from testifying in his own defense.

Unaccompanied by coercion, legal advice concerning exercise of the right to testify infringes no right, see Teague, 953 F.2d at 1534-35; Rogers-Bey, 896 F.2d at 283, but simply discharges defense counsel's ethical responsibility to the accused. See ABA Standards Relating to the Administration of Criminal Justice, Compilation p. 127 (1974) ("the decisions which are to be made by the accused after full consultation with counsel are ... (iii) whether to testify in his own behalf."). The difficult line courts must draw between earnest counseling and overt coercion is guided by several considerations, including: (1) whether the defendant knew about his constitutional right to testify, and if not, whether he was informed by counsel, see Teague, 953 F.2d at 1533 ("defense counsel bears the primary responsibility for advising the defendant of his right to testify or not to testify"); see also Bernloehr, 833 F.2d at 751 ("the defendant's waiver of his right to testify, like his waiver of other constitutional rights, must be made voluntarily and knowingly"); (2) the competence and soundness...

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