[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-2103

EMIRO PASSOS-PATERNINA,

Plaintiff, Appellant,

v.

UNITED STATES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]

Before

Boudin, Circuit Judge, Campbell, Senior Circuit Judge, and Stahl, Circuit Judge.

Emiro Passos-Paternina on brief pro se. Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, and Camille Velez-Rive, Assistant United States Attorney, on brief for appellee.

August 18, 1999

Per Curiam. Appellant, Emiro Passos-Paternina, has appealed the district court's denial of his motion, filed pursuant to 28 U.S.C. 2255. We have carefully reviewed the parties' briefs and the record on appeal. We affirm essentially for the reasons stated in the district court's opinion. See Passos-Paternina v. United States,

(D.P.R. 1998). We add only the following: The district court determined that, although proffered as a claim of ineffective assistance of counsel, the second of Passos-Paternina's two claims was really a claim of the denial of his right to testify on his own behalf and that such a claim should not be analyzed under the Strickland standard for ineffective assistance of counsel claims; rather, such a claim should be reviewed as a constitutional "trial error" subject to the Brecht harmless error standard. Passos- Paternina v. United States,

(agreeing on this point with the Fifth Circuit's opinion in Jordan v. Hargett,

, 316 n.5 (5th Cir. 1994), vacated on other grounds,

(1995) (en banc)). We need not decide which of the two standards is appropriate here. To establish Strickland prejudice, a 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." Strickland v. Washington,

(1984). Pursuant to the Brecht harmless error standard, a defendant must show "actual prejudice," defined as showing that the constitutional trial error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson,

(1993) (quoting Kotteakos v. United States,

(1946)). In the instant case, the district court concluded that Passos-Paternina had not demonstrated that the denial of his right to testify actually prejudiced his defense. Passos-Paternina v. United States,

. That conclusion was correct and the result would not change even if analyzed under the Strickland standard. Affirmed.