United States District Court, D. Massachusetts
ORDER ON PETITIONER'S MOTION FOR EVIDENTIARY
Dennis Saylor IV United States District Judge.
a petition for a writ of habeas corpus by a prisoner in
federal custody pursuant to 28 U.S.C. § 2255. Petitioner
Angel Morales was convicted on January 18, 2013, of
conspiracy to possess with intent to distribute cocaine in
violation of 21 U.S.C. § 846. He was sentenced to 120
months in prison followed by a term of supervised release for
five years. Proceeding pro se, petitioner has filed
a motion to vacate pursuant to 28 U.S.C. § 2255,
alleging ineffective assistance of counsel. He has also moved
for an evidentiary hearing to offer evidence in support of
court has authority to determine whether to grant an
evidentiary hearing, based on a review of the record.
See Rule 8(a), Rules Governing Section 2254 Cases.
Although there is no right to an evidentiary hearing, the
statute provides that "unless the motion and files and
records of the case conclusively show that the prisoner is
entitled to no relief the court shall . . . grant a
prompt hearing thereon." 28 U.S.C. § 2255(b)
(emphasis added); see United States v. McGill, 11
F.3d 223, 225 (1st Cir. 1993). However, "evidentiary
hearings on motions are the exception, not the rule, "
and motions can often be "heard" on the papers
alone; therefore, the petitioner carries a "fairly heavy
burden of demonstrating a need for special treatment."
Id. The court may forego a hearing "when the
movant's allegations, even if true, do not entitle him to
relief, or when the movant's allegations need not be
accepted as true because they state conclusions of facts,
contradict the record, or are inherently incredible."
Id. at 226 (citing Shraiar v. United
States, 736 F.2d 817, 818 (1st Cir. 1984)) (internal
deciding whether or not to grant an evidentiary hearing, the
Court may direct the petitioner to "expand the record by
submitting additional materials relating to the petition,
" which would give the government a chance to
"admit or deny" the veracity of the supplemental
materials. Rule 7, Rules Governing Section 2254 Cases. An
evidentiary hearing is much more likely to be granted when
the allegations are specific and accompanied by some
"independent corroboration." See United States
v. Butt, 731 F.2d 75, 80 n. 5 (1st Cir. 1984); see
also Owens, 483 F.3d at 60 (deciding that when one of
the defendant's two attorneys did not provide an
affidavit confirming that defendant was not told of his right
to testify, it was better to resolve potential inconsistency
through an evidentiary hearing rather than guessing).
17, 2016, the Court ordered petitioner to submit an affidavit
concerning his ineffective assistance of counsel claim. On
July 6, 2016, petitioner submitted a two-page affidavit, in
which he alleges the following:
That after the government presented its case, I told my
former attorney, Robert Golstein, that I wanted to testify,
mainly because I wanted the jury to hear my side of the
story, however, my trial attorney told me that it was not
necessary because he said that the jury would eventually find
me not guilty. Additionally, my attorney also said that it
would be prejudicial if I took the stand, since the name of
Angel Morales has an extensive criminal record. I therein
told him that I am not that Angel Morales because I have no
prior record. But my attorney was nonetheless adamant that
the jury would find me not guilty. However, prior to the
aforementioned discussions, my attorney never once advised me
that the decision whether to testify or not was mines [sic].
contends that he would have testified, among other things (1)
that he is not the "Angel Morales" who has an
extensive criminal record; (2) that he only knew Santana
through their time attending cockfights together and that he
only bought roosters from Santana, never drugs; (3) that he
was unaware that Pastor was using his name to facilitate drug
transactions; and (4) that Santana and Pastor are compulsive
liars who are falsely implicating him. He also contends that
attorney Goldstein "failed to heed [his] request that we
both review the telephone calls that were to be utilized at
the trial against me."
light of what petitioner has submitted, the Court hereby
orders attorney Robert M. Goldstein to submit an affidavit in
response to petitioner's affidavit in support of his
ineffective assistance of counsel claim. That affidavit
shall be submitted within 28 days of this order, or by August
 Habeas petitioners cannot claim
ineffective assistance of counsel and then assert privilege
as to communications with counsel. Johnson v.
Alabama, 256 ...