USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 93-1023
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN McGILL,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
_________________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
_________________________
Randy Olen, with
__________

whom David N. Cicilline was

__________________

on brief, for

appellant.
Louise A. Lerner, Attorney, Civil Rights Division, United
_________________
States Dept. of Justice, with whom James P. Turner, Acting
_________________
Assistant Attorney General, Jessica Dunsay Silver, Attorney,
_______________________
Civil Rights Division, Edwin J. Gale, United States Attorney, and
_____________
Anthony C. DiGioia, Assistant United States Attorney, were on
___________________
brief, for the United States.
_________________________
November 24, 1993
_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________
a

tragic incident

that occurred

touring familiar terrain,

of relief under 28 U.S.C.
I.
I.

This appeal impels us to revisit

nearly

a decade

we affirm the district

ago.

After

court's denial

2255 (1988).

BACKGROUND
BACKGROUND
Defendant-appellant Steven

McGill worked

as a

guard at a state penitentiary in Cranston, Rhode Island.

10, 1984,

at about 3:30

p.m., McGill was conversing

prison

On July

with Roger

Alessio

(an inmate)

in

prison.

A second guard,

so-called

"reception area"

to McGill

for safekeeping.

McGill began to mimic elements of

The Deerhunter (Universal
______________
prisoners of war
this

practice, handed

In Kaplan's

a scene from a motion picture,

by North Vietnamese soldiers.

McGill

he, McGill, emptied

all but one bullet, spun

absence,

Studios 1978), depicting the

periculous psychodrama,

seated while

the

Kenneth Kaplan, passed through the area

en route to the kitchen and, following standard

his weaponry

at

forced

abuse of

In the course of
Alessio to

the second guard's

remain

handgun of

the cylinder several times, flailed his

arms wildly, and screamed, "Mau!

Mau!"

McGill proceeded to pull

the trigger twice, first while aiming the weapon at his own head,
and thereafter while aiming it at

Alessio's head.

pull

discharged, resulting

of

the

trigger,

the

gun

On the second
in

the

another of

his

inmate's death.
A jury

convicted McGill

civil rights

while acting under

resulting.

See
___

18

of depriving

color of state law,

U.S.C.

242

(1988).

We

with death

affirmed the

conviction

on direct

appellant's
counsel's

right

to

(1st Cir.

appellant's

prejudice,

questions

through

an

however,

concerning

application

to

trial

for

post-

See United States v. McGill, 952 F.2d 16, 17___ _____________

______

1991).

The district court

ineffective

assistance

convene an evidentiary hearing.

II.
II.

without

litigate

effectiveness

conviction relief.
19

appeal,

subsequently rejected

claim

without

pausing

to

The instant appeal followed.

ISSUES PRESENTED
ISSUES PRESENTED
This appeal presents

two issues.

the contention that the court below

evidentiary

hearing

conviction

relief.

on

appellant's assertion
counsel's services

past

that the

application

that

hurdle,

court erred

for
we

post-

confront

in declaring

acceptable notwithstanding

allowed The Deerhunter to be shown

______________

with

erred in refusing to hold an

appellant's

Once

We deal first

that counsel

to the jury in its

trial

(a)

entirety,

without objection, and (b) failed to produce a firearms expert as

promised in the opening statement.
III.
III.

THE NEED FOR AN EVIDENTIARY HEARING

THE NEED FOR AN EVIDENTIARY HEARING
Courts

are

busy

places.

Not

surprisingly,

evidentiary hearings on motions are the exception, not

We have repeatedly
defendant is not

stated that, even in the

entitled as of right to

on a pretrial or posttrial

motion.

then,

the rule.

criminal context, a

an evidentiary hearing

See, e.g., United States v.

___ ____ ______________

Mala, ___ F.3d ___, ___ (1st Cir. 1993) [No. 91-2229, slip op. at
____

8-9]; United States v.

______________

Tardiff, 969 F.2d

_______

1992); United States v.

______________

1283, 1286

DeCologero, 821 F.2d

__________

(1st Cir.

39, 44

(1st Cir.

1987).

Thus, a party seeking an evidentiary hearing must carry a

fairly

heavy

treatment.

burden

See
___

of

demonstrating

need

United States v. Panitz, 907

_____________
______

for

special

F.2d 1267, 1273-74

(1st Cir. 1990) (collecting cases).

In most situations, motions can be
on the papers,

with the parties submitting

"heard" effectively

evidentiary proffers

by means of affidavits, documentary exhibits, and the like.

See,
___

e.g., Aoude
____ _____

Cir.

v.

Mobil Oil Corp., 862

________________

1988); DeCologero,
__________

821 F.2d at

test

an

should

for granting

be substantive:

44.

F.2d 890,
In borderline

evidentiary hearing
did the

that material

in

defendant

threshold

showing

dispute?"

Panitz, 907 F.2d at 1273.

______

894 (1st

facts

were

cases "[t]he

a criminal
make a
in

case

sufficient

doubt

or

in

Applying this standard, the

court below, after allowing the parties to supplement the record,

see
___

Rule 7, Rules Governing Section 2255 Proceedings, determined

that

there

were

"no

factual

issues

in

dispute,"

and,

consequently, refused to schedule an evidentiary hearing.

Appellant
although section

derides

2255

this

ruling.

petitions are

He

admittedly

claims

that,

motions,

see,
___

e.g., Rule 2, Rules Governing Section 2255 Proceedings,

____

they are

special, and the movant should be afforded an evidentiary hearing

as a

matter of course

necessary.
section

unless the government shows

This thesis

2255 creates

which

implies

presumption

in

that none is

that something
favor

about

of

evidentiary

the contrary presumption that

attends the

hearings1 rather than

filing of

most motions

federal habeas

is

unavailing.

statute does not

The language

require a court to

of the

reverse the

usual presumption.
When

a petition

is brought

under

section 2255,

the

petitioner

bears

the burden

evidentiary hearing.

of

establishing the

need

for an

See Mack v. United States, 635 F.2d 20, 26___ ____

_____________

27 (1st Cir. 1980); United States v. DiCarlo, 575 F.2d 952,

______________
_______
(1st Cir.),

cert. denied, 439

_____ ______

whether the

petitioner has carried

this respect,

the court must

averments

true,

as

conclusory

but

persuasion in

petitioner's factual

court need

not

self-interested

discredited inventions, or

In determining

the devoir of

take many of

the

allegations,

U.S. 834 (1978).

954

give

weight

to

characterizations,

opprobrious epithets.

See
___

Mack, 635
____

F.2d at 27; Otero-Rivera v. United States, 494 F.2d 900, 902 (1st
____________
_____________
Cir. 1974).

Moreover, when,

federal habeas relief

the petitioner's
knowledge
based

as in

is presented to the judge

trial, the

judge is at

gleaned during previous

thereon

without

this case,

a petition

who presided at

liberty to

convening an

additional

hearing.

____________________
1The statute provides in pertinent part:
Unless 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 . . . .
2255.
5

employ the

proceedings and make findings

DiCarlo, 575 F.2d at 954-55.

_______

28 U.S.C.

for

See
___

We have
holds a hearing
inadequate

distilled these

to be unnecessary "when

on its

face, or

conclusively refuted

In

true, entitle

Moran
_____

facially

that

(1) is

adequate is

by the

files and

v. Hogan, 494 F.2d 1220, 1222

_____
a "

2255 motion

may be

as to those allegations which,

the

a rule

2255 motion

the alleged facts

other words,

without a hearing

(2) although

as to

records of the case."

Cir. 1974).

principles into

movant to

no relief,

(1st

denied

if accepted as

or which

need not

be

accepted as true because they state conclusions instead of facts,

contradict

the record, or are `inherently incredible.'"

v. United States, 736 F.2d

______________
omitted);

see also
___ ____

Rule

817, 818 (1st Cir.

4(b),

Rules

Shraiar
_______

1984) (citations

Governing

Section

2255

Proceedings.
Against

this backdrop, it is readily apparent that the

district court did not err

evidentiary hearing.

in denying appellant's request for an

Appellant brought his petition

very judge who presided at his trial.

before the

In doing so, he mounted no

serious challenge on
__

the facts.
___ _____

Rather, as

we elucidate below,

he sought to place a

particular gloss on, and draw a

particular

set

of conclusions

from, essentially

undisputed facts may

does

not

entitle

hearing.
(1st

See,
___

Cir.

instant

record,

plausibly be interpreted in
an

interested

litigant

e.g., United States

____ _____________

1992).

undisputed

Under
an

the

to

facts.

That

different ways
an

evidentiary

v. Garcia, 954
______

F.2d 12, 19

circumstances

evidentiary hearing

reflected by

would

have

the

served no

useful purpose.
6

IV.
IV.

THE INEFFECTIVE ASSISTANCE CLAIM

THE INEFFECTIVE ASSISTANCE CLAIM
To

succeed in setting

ineffective assistance
both

aside a conviction

of counsel,

constitutionally deficient

a petitioner

performance

premised on

must establish

on his

attorney's

part and concomitant prejudice, or, phrased another way, that the
quality of legal
to

be

representation at his trial was

objectively

unreasonable,

and

that

so inferior as

this

lawyering redounded to his substantial detriment.

incompetent

See Strickland
___ __________

v. Washington, 466 U.S. 668, 689-94 (1984).

__________
Here,

appellant excoriates

counsel

for two

tactical

decisions

that

reasonableness.
Strickland
__________

he
We

contends
need

were

not

inquiry in either

outside

reach the

the

second

instance, for we

realm

of

stage of

the

find appellant's

criticisms of these lawyerly stratagems to be unwarranted.2

____________________

2There is some uncertainty surrounding the standard of

appellate review. Before Strickland, the rule in this circuit
__________
was that fact-based findings made by a district judge on a
section 2255 petition
including petitions that asserted
ineffective assistance claims
were to be reviewed for clear
error.
See DiCarlo, 575 F.2d at 954-55.
This rule obtained
___ _______
whether the findings were made with or without an evidentiary
hearing.
See id.
This rule may or may not have survived
___ ___
Strickland, a habeas case under 28 U.S.C.
2254, wherein the
__________
Court observed that "although district court findings are subject
to the clearly erroneous standard of Federal Rule of Civil
Procedure 52(a), both the performance and prejudice components of
the ineffectiveness inquiry are mixed questions of fact and law."
Strickland, 466 U.S. at 698. Although we have not yet considered
__________
the significance of this statement vis-a-vis the standard of
appellate review in section 2255 proceedings, at least one court
has read the quoted statement to suggest that, with the exception
of historical facts, district court findings in a section 2255
ineffective assistance case should be reviewed de novo.
See
__ ____
___
United States v. Miller, 907 F.2d 994, 996-97 (10th Cir. 1990);
_____________
______
see also Fields v. Attorney General, 956 F.2d 1290, 1297 n.18
___ ____ ______
________________
(4th Cir. 1992) (same;
2254 proceeding). There is, of course,
another possible interpretation of the Court's words, more
7

A
A
At

trial,

Deerhunter could
__________
Appellant
his

be

exhibited

counsel
to the

stipulated

jury

in

that

its

The
___

entirety.

says that he consistently opposed this maneuver,3 that

counsel

competent

appellant's

knew

of his

defense

stipulation.
In

opposition,

attorney

would

and

have

that

entered

no reasonably
into

such

We disagree.
an

affidavit

submitted

in

conjunction

with

an

earlier motion, appellant's trial counsel explained his thinking.

The prosecution wished to introduce
film, bearing

directly on

Based on

judgments concerning

his

a 15-minute excerpt from the

the behavior

mimicked by

appellant.

relevance, probative

value,

unfairly prejudicial impact, and how the judge would likely rule,
counsel

calculated that

exclude the film clip.

he would
In

not

prevail on

a motion

an effort to cut anticipated

to

losses,

____________________
consonant

with

DiCarlo:
that, while the district court's
_______
underlying findings of fact are reviewed only for clear error,
its ultimate legal conclusions may be reviewed more or less
strictly according to the degree that they are fact-dominated.
Cf. In re Extradition of Howard, 996 F.2d 1320, 1327-28 (1st Cir.
___ ___________________________
1993) (elaborating standard for mixed questions of fact and law).
We leave this vexing question for
another day as, here,
regardless of which standard of review obtains, the result is
unaffected.

3While McGill has never recanted his admission that he was

mimicking a scene from The Deerhunter, he has for some time

_______________
vehemently denied that he was playing "Russian roulette." This
seems to be the impetus for his personal opposition to the
admission of the film into evidence.
It is true that no money
changed hands in appellant's version of the scene, and that he
shot the inmate directly, rather than forcing the inmate to shoot
himself.
But
appellant's distinction
is
of no
legal
significance, for the self-conscious patterning of his behavior
after that of characters in the film suffices to make the film
relevant.
8

he obtained
three-hour

a stipulation from
movie would

be

the prosecution that

shown, in

the entire

the expectation

that the

impact of the critical scene would be dissipated.

Counsel's

intuition that an objection to the film clip

would have failed

is supported by our current

situation.

intuition is

His

also

conclusion,

albeit on "plain

relevant to

the jury's deliberations.

18-19.

Last, but far

support from

assessment of the

supported

by our

error" review, that

earlier

the movie was

See McGill, 952

___ ______

F.2d at

from least, this intuition derives staunch

the opinion of

the trial judge,

who characterized

counsel's strategic choice as objectively reasonable.

We will
ineffective
necessarily

not belabor the point.

assistance,
be

right,

an
so

To avoid the shoals of

attorney's
long

as

it

judgment
is

need

reasonable.

not

See

___
Strickland, 466 U.S. at 687-91.
__________
reasonable

choice.

concession

for

In

the

Here, counsel made an unarguably

acting

ensuing

on it,

he

stipulation,

extracted

fair

compelling

the

prosecution to show the entire film rather than zeroing in on the

shorter,

more

decision

not

powerful
to

necessary bearing

excerpt.4

abide by
on the

the

And,

wishes

question

of

finally,

counsel's

his client

of professional

has

no

competence;

indeed, in some instances, listening to the client rather than to

____________________

4We note that counsel's elucidation of his strategy comports

with his conduct for the duration at the trial. In his closing
statement, counsel dismissed the film as boring, irrelevant, and
offensive, and attempted to use the motion picture as a whole to
his advantage by picking up on a piece of dialogue unrelated to
the critical scene.
9

the

dictates of

incompetence.

professional

judgment

may

itself

constitute

See Bell v. Georgia, 554 F.2d 1360, 1361 (5th Cir.

___ ____
_______

1977).
B
B

At

the trial,

defense

counsel

elected

to

make

an

opening statement prior to presentation of the prosecution's case

in

chief.

He

told the jury

expert" as a defense witness.

the substance
turned out,
says

of the

that he would
He did

produce "a firearms

not, however, explain what

expert's testimony would

counsel decided not

be.

As matters

to call the expert.

Appellant

the breach of the attorney's forecast comprised ineffective

assistance.

We think not.

Although

a failure to

under some circumstances

e.g., Anderson v.
____ ________

produce a promised

be deemed ineffective

Butler, 858 F.2d 16,

______

determination

of inefficacy

particular set

of rules can

independence

decisions."

1988), the

fact-based.

be established to

and latitude counsel

and strategic

assistance, see,
___

19 (1st Cir.

is necessarily

assistance, as hard-and-fast rules would

witness may

"[N]o

define effective

inevitably restrict the

must have in

United States v.
______________

making tactical

Natanel, 938
_______

F.2d

302, 310 (1st Cir. 1991), cert. denied, 112 S. Ct. 986 (1992).
_____ ______
In

this case, counsel's handling of the on-again, off-

again expert testimony

Counsel
reasons.

refrained
First,

was not only defensible,

from
after

calling
making

the
the

discovered that his previously retained

10

expert
opening

but impressive.
witness

for

statement,

two

he

witness had feet of clay

and could

easily be impeached.

succeeded,

by

dint

of

Second, and more

skillful

important, he

cross-examination

of

the

prosecution's firearms expert, in eliciting much the same opinion

evidence that he

hoped to establish through his own expert.

prosecution's expert was

led to concede that the

The

trigger of the

murder weapon was so sensitive that pulling it could have been an

"unconscious act"

concession that defense

counsel used

to

good effect in his summation.

Knowing when to quit is often a hallmark of commendable

courtroom advocacy.

Thus, having

prosecution's witness, defense

for deciding
stated:
when

to leave

proved his point

counsel can

well enough

alone.

scarcely be
As

faulted

the trial

judge

"The decision not to call an easily impeachable witness,

the testimony

sought
another

from the
expert,

witness

introduced

from

decision."

We find ourselves in full accord.

V.
V.

through the

was

had already

reasonable

been

tactical

CONCLUSION
CONCLUSION
Because the record here

appellant is not
no further.

conclusively demonstrates that

entitled to post-conviction relief,

we need go

We rule (1) that appellant did not have an absolute

right to an evidentiary hearing,

did not err in finding

and (2) that the district court

that the proficiency of appellant's legal

representation surpassed the constitutional minimum.

Affirmed.
Affirmed.
________

11