[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 02-1243

MANUEL GONZALEZ-GONZALEZ,

Petitioner, Putative Appellant,

v.

UNITED STATES,

Respondent, Putative Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Judith H. Mizner, on motion for issuance of certificate of appealability, for putative appellant.

October 29, 2002 SELYA, Circuit Judge. The petitioner, Manuel Gonzalez-

Gonzalez, moves for a certificate of appealability,

, alleging ineffective assistance of appellate and trial

counsel. We recite only the facts necessary to limn the

petitioner's claims. We refer readers who hunger for more exegetic

detail to our opinion on direct appeal. See United States v.

Gonzalez-Gonzalez,

(1st Cir.), cert. denied,

(1998).

The petitioner's principal claim is that his appellate

counsel blundered by failing to argue that he (the petitioner) had

been deprived of his Sixth Amendment right to represent himself.

The record, however, shows that the district court correctly denied

the petitioner's request for self-representation because the

petitioner did not unequivocally waive his right to counsel. See

United States v. Betancourt-Arretuche,

(1st Cir.

1991) (honoring "every reasonable presumption against waiver of the

right to counsel") (citation and internal quotation marks omitted).

With his counseled motion for hybrid representation still pending,

the petitioner submitted a pro se motion stating that he "remains

in his position of requesting from the Court his pro se

representation with the assistance of his attorney . . . as standby

counsel." (emphasis supplied). The unavoidable conclusion,

reinforced by the lengthy colloquy during the second day of trial,

is that the petitioner was not asserting his right to represent

-2- himself, but, rather, was renewing his request for hybrid

representation. Accordingly, appellate counsel was not ineffective

for declining to raise the issue of self-representation.

We are somewhat more troubled by the claim that trial

error occurred during jury deliberations — error to which trial

counsel's lethargy allegedly contributed and about which appellate

counsel neglected to complain. We set the stage.

The preferred practice in this circuit is that "messages

from a deliberating jury, pertaining to ongoing deliberations,

ought to be fully disclosed to the lawyers when received, so that

the latter may be heard before the judge implements a course of

action." United States v. Parent,

(1st Cir. 1992).

According to the petitioner's unsworn memorandum,1 the district

court, without notifying either counsel, granted the jury's request

for transcripts of the testimony of two government witnesses. The

court then issued a written supplemental instruction in response to

a jury note without involving counsel in the process. In

substance, the instruction reminded the jury that it had a duty to

determine the guilt or innocence of the defendant from the evidence

in the case, and that the verdict must be unanimous as to each

count of the indictment.

1 The sworn petition alleges only that the court "decid[ed] jury notes out of presence of defendant."

-3- In the ordinary course, a habeas application must rest on

a foundation of factual allegations presented under oath, either in

a verified petition or a supporting affidavit. See, e.g., Rule 2,

Rules Governing Section 2255 Proceedings,

. Facts

alluded to in an unsworn memorandum are not sufficient. See

Barrett v. United States,

(1st Cir. 1992);

Dalli v. United States,

(2d Cir. 1974). Here,

moreover, even were we to accept the petitioner's unsworn

allegations as true, they would not warrant a certificate of

appealability because the petitioner has identified no plausible

way in which he might have been prejudiced.

The rule in this circuit is that "a trial court's error

in failing seasonably to inform counsel about a jury note does not

require reversal if the error is benign." Parent,

(citing United States v. Maraj,

(1st Cir. 1991));

accord United States v. Hernandez,

(1st Cir.

1998).2 This comports with the authorities elsewhere. See, e.g.,

United States v. Bustamante,

(6th Cir. 1986);

United States v. Widgery,

(7th Cir. 1985); United

2 We have yet to decide whether the appropriate test for harmlessness in this context is that set forth in Chapman v. California,

(1967) (asking whether the error was "harmless beyond a reasonable doubt") or the more lenient inquiry delineated in Kotteakos v. United States,

(1946) (asking whether "the error had substantial and injurious effect or influence" vis-à-vis the judgment). We need not make that choice today, as the petitioner falls short under either definition of harmless error.

-4- States v. Arriagada,

(4th Cir. 1971); Jones v.

United States,

(10th Cir. 1962).

In this instance, the supplemental instructions were

correct on their face. Moreover, even though the supplemental

instructions were "delivered at a critical juncture in the case,"

they were not "out of balance" in any material respect. Parent,

. In any event, the supplemental instructions were

similar to portions of the charge, given earlier, that counsel had

reviewed without objections. As for the transcripts, if they were

furnished to the jury at all — the court promised them only at the

conclusion of its own review — it is hardly remarkable (and

certainly not erroneous) for the court to have key testimony read

or submitted to the jury at the jury's request. See, e.g., United

States v. Argentine,

(1st Cir. 1987). The

petitioner gives us no convincing reason to think that counsel

might have objected; or that, if he had objected, he could have

changed the trial court's mind; or even that, had the transcripts

been withheld, the verdict might have been different.

In an effort to parry this thrust, the petitioner

contends that, notwithstanding the Parent rule, prejudice should be

presumed because he was "denied counsel at a critical stage of his

trial." United States v. Cronic,

(1984)

(footnote omitted). Doctrinally speaking, however, prejudice per

se is hen's-teeth rare. Indeed, two recent Supreme Court cases

-5- have emphasized just how unusual are the circumstances that would

justify a court in forgoing particularized inquiry into whether

counsel's inadequate performance undermined the reliability of a

verdict. See Mickens v. Taylor,

(2002); Bell

v. Cone,

(2002). In both instances, the

Court reiterated the proposition that, in the ineffective

assistance context, prejudice may be presumed only in narrowly

circumscribed situations.3 We too have emphasized the same point.

See, e.g., Ouber v. Guarino,

(1st Cir. 2002);

Scarpa v. Dubois,

(1st Cir. 1994). We are

constrained by these authorities to hold that the prejudice per se

doctrine does not apply in the circumstances of this case.4

The petitioner next asserts that his various counsel

should have anticipated the Supreme Court's decision in Apprendi v.

New Jersey,

(2000), and that he should be resentenced

3 Moreover, the Supreme Court recently vacated the decision in French v. Jones,

(6th Cir. 2002) (affirming the grant of a state prisoner's habeas petition on the ground that the state courts "unreasonably applied harmless error analysis to French's deprivation of counsel during the supplemental instruction"). The Court remanded the case "for further consideration in light of Bell v. Cone[.]" Jones v. French,

(2002) (per curiam). 4 Our opinion in Curtis v. Duval,

(1st Cir. 1997), is not to the contrary. Dictum aside, the Curtis court, consistent with Bell and Mickens, rejected the habeas petitioner's reliance on "Cronic's prejudice per se principle" and held that the petitioner was not "actually prejudiced."

. We explained that the trial court's error in instructing the jury during the "transitory absence" of the petitioner's counsel "was neither substantial nor injurious," but, rather, "harmless."

-6- in light of that decision. Even assuming Apprendi applies

retroactively to this case — a matter on which we take no view —

any error would be harmless. See United States v. Duarte,

(1st Cir. 2001) (applying harmless error analysis to

assertion of Apprendi error).

Here, the evidence overwhelmingly establishes the minimum

drug quantity needed to justify the sentence actually imposed. The

government's "very strong case against Gonzalez" included the

physical seizure of 350 kilograms of cocaine, part of a "major

shipment of cocaine and marijuana Gonzalez had imported from

Colombia to Puerto Rico in September of 1992." Gonzalez-Gonzalez,

. No more is exigible to defeat an unpreserved

Apprendi claim.

The petitioner also asseverates that his trial counsel

should have investigated and called three witnesses on his behalf.

This asseveration is unpersuasive. There is no indication that one

witness, a convicted codefendant in a related case, made available

any allegedly exculpatory information before or during the

petitioner's trial. The second witness would have offered only

cumulative impeachment testimony. The third might in turn have

been impeached with his prior statements implicating the petitioner

in several drug transactions. Under these circumstances, the

petitioner cannot overcome the presumption that counsel's decision

not to call these witnesses might be considered sound trial

-7- strategy. See, e.g., Lema v. United States,

(1st

Cir. 1993) (stating that the "decision to interview potential

witnesses, like the decision to present their testimony, must be

evaluated in light of whatever trial strategy reasonably competent

counsel devised in the context of the particular case"); United

States ex rel. Walker v. Henderson,

(2d Cir.

1974) (stating that "the decision to call or bypass particular

witnesses is peculiarly a question of trial strategy which courts

will practically never second-guess") (citation omitted).

Finally, the petitioner faults his appellate counsel for

not bringing the government to account for sharp tactics. In this

regard, he contends that the government improperly "highlighted"

alleged code words in video transcripts that were shown to the

jury, using quotation marks and contrasting typeface for emphasis.

At trial, the petitioner objected to the government's playback of

tape recordings on several grounds, including improper redaction,

manipulation of volume, and apparent errors of transcription.

Highlighting was not one of his complaints. We find the new

allegation inherently improbable and contradicted by the record.

Thus, we cannot say that appellate counsel was ineffective for

failing to raise this claim.

We need go no further. The motion for a certificate of

appealability is denied and the appeal is terminated.

So ordered.

-8-