United States v. Perez ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31329
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-CV-1250
USDC No. 91-CR-479-L
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March 9, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
In this 28 U.S.C. § 2255 proceeding, this court granted
Alberto Perez, who is a now a federal prisoner (# 59483-079), a
certificate of appealability (“COA”) to appeal the issue whether
his trial counsel performed ineffectively by failing to call as a
witness Julio Castro, who filed an affidavit in which he attested
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-31329
- 2 -
that he had been willing to testify so as to contradict certain
testimony by primary Government witness James Singletary. Perez
also argues that the district court should have held an
evidentiary hearing as to this claim.
Castro’s affidavit, presented more than five years after
trial, suggests that he might have been able to counter some of
the testimony given by Singletary. However, the affidavit, the
record on appeal, and Perez’s own conclusional and speculative
assertions about his attorney’s failure to call Castro reflect
that his attorney made a reasonable strategic decision not to
call Castro. See Alexander v. McCotter, 775 F.2d 595, 602 (5th
Cir. 1985) (§ 2254 case); Murray v. Maggio, 736 F.2d 279, 282
(5th Cir. 1984) (§ 2254 case); Strickland v. Washington, 466 U.S.
668, 689-94 (1984). Castro’s attestations in fact do not
directly contradict Singletary’s testimony but merely suggest
Castro’s own unawareness of Perez’s role in the incidents
described by Singletary. Moreover, Perez’s pleadings are
inadequate to explain how Castro’s testimony might have aided his
overall trial strategy or why Castro, who was apparently an
unindicted coconspirator, would even want to testify. See Gomez
v. McKaskle, 734 F.2d 1107, 1109-10 (5th Cir. 1984) (§ 2254
case). Perez was not entitled to an evidentiary hearing on this
matter.
The judgment of the district court is AFFIRMED.