USCA1 Opinion

       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]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, 12 F.Supp.2d

  231 (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, 12 F.Supp.2d at 240 (agreeing on

  this point with the Fifth Circuit's opinion in Jordan v.

  Hargett, 34 F.3d 310, 316 n.5 (5th Cir. 1994), vacated on other

  grounds, 53 F.3d 94 (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, 466 U.S. 668, 694 (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, 507

  U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328

  U.S. 750, 776 (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, 12 F.Supp.2d at 242-43. 

  That conclusion was correct and the result would not change

  even if analyzed under the Strickland standard.

            Affirmed.