UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Charles Glenn

v. Civil No. 05-cv-074-JD

United States of America

O R D E R

In this section 2255 petition, the petitioner claims that

his counsel was ineffective because (1) counsel did not

effectively present petitioner’s alibi defense through witnesses

the petitioner had identified; (2) counsel did not inform the

petitioner of his right to testify in his own defense; and (3)

counsel did not allow petitioner to testify in his own defense

concerning his alibi. 

The petitioner was found guilty on September 9, 2003, of one

count of distribution of Xanax and one count of distribution of

crack cocaine in violation of 21 U.S.C. § 841(a)(1). He was

found not guilty of a third count charging him with distribution

of crack cocaine. He was sentenced to serve a term of

imprisonment of 262 months followed by 72 months of supervised

release. On appeal the judgment and sentence were affirmed. 

United States v. Glenn, 389 F.3d 283 (1st Cir. 2004). 

A hearing was held at which petitioner was represented by

new counsel. 

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In reviewing the petitioner’s claims, the court will apply

the standard set forth in Strickland v. Washington, 466 U.S. 668

(1984), which is succinctly summarized in the case of Cofske v.

United States, 299 F.3d 437, 441 (1st Cir. 2002):

Not every error amounts to ineffectiveness. See Lema

v. United States, 987 F.2d 48, 51 (1st Cir. 1993). An

ineffective assistance of counsel claim will succeed

only if the defendant--who bears the burden on both

points, Scarpa v. DuBois, 38 F.3d 1, 8-9 (1st Cir.

1994)--shows (1) that counsel’s performance fell below

an objective standard of reasonableness, and (2) that

but for the error or errors, the outcome would likely

have been different, Strickland, 466 U.S. at 687, 104

S.Ct. 2052. 

The evidence elicited at trial is set forth in detail in the

Glenn opinion, supra, and need not be repeated here. Suffice it

to say that there was evidence of hand to hand sales between the

petitioner and an undercover police officer who identified the

petitioner as the seller. This testimony was corroborated by

surveillance officers who observed the transactions and by a

codefendant. As the appeals court noted in its opinion, there

was “overwhelming evidence of Glenn’s guilt.” Glenn, supra at 

287. 

The petitioner claimed an alibi defense and mistaken

identity. He and his trial counsel agree that they conferred

approximately six times before trial, and this is borne out by

the time sheets attached to the CJA voucher. From the outset he

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maintained that he was not in Manchester when the sales occurred,

that he was innocent, and that he wanted to go to trial. He

eschewed the opportunity for a negotiated plea.

He provided counsel with the names of individuals he claimed

would corroborate his alibi defense. Counsel contacted the

witnesses and determined what they might have known about where

the petitioner was during the times of the sales. As counsel

testified at the hearing, “There was a lot of conflicting

memories as to who was doing what and where.” In an effort to

present a coherent alibi defense, counsel decided to call only

some of the witnesses because of the contradictions that existed

among the witnesses. Indeed, during trial counsel stated on the

record, “[T]here was two other witnesses I called in. I talked

to them. They’re not of any enlightenment for the court because

of the time frames, it was so long ago, it was hard to get that

out of them when I talked to them previously. So I’m not going

to bother calling them now. . . .” See Trial Tr. 9/9/03 at 43.

Counsel called the petitioner’s aunt, sister, and daughter

as alibi witnesses, and the petitioner’s son as an alibi and

mistaken identity witness. The jury did not believe their

testimony which is understandable give their poor memories, their

confusion about time frames, and their obvious interest in

helping the petitioner. As the court stated at the sentencing

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hearing in referring to their testimony, “I think the kindest way

to describe it is that they tailored their testimony to the

defendant’s alibi.” See Sentencing Tr. 3/4/04 at 3.

Given what he had to work with, the court finds that counsel

presented the petitioner’s alibi and mistaken identity defenses

to the jury in a reasonably effective way, and the petitioner has

failed to sustain his burden of showing that counsel’s

performance fell below an objective standard of reasonableness on

the first claim.

The second and third claims are interrelated. While the

petitioner claims that he was not informed of his right to

testify, it is evident from his and his trial counsel’s testimony

at the hearing that the petitioner knew he could testify. 

Counsel discussed with him the risks he might face if he

testified and also instructed him to tell the truth if he

testified. Counsel did not review any specific questions the

petitioner might be asked.

The petitioner said that early on in their relationship he

discussed testifying with counsel and told him he wanted to

testify. He also said that on several occasions during the

course of the trial he told counsel he wanted to testify. 

Therefore, it is clear that the petitioner knew he had a right to

testify in his own defense and that he communicated to his

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counsel his desire to testify on a number of occasions right up

to the time that defense counsel rested.

Defense counsel had no specific recollection as to when he

discussed taking the stand with the petitioner but stated that

“generally” he decides with his client whether or not he will

take the stand after the last defense witness has testified. 

Counsel did not request a recess to discuss this matter with the

petitioner. He could only testify as to what he “generally”

does, which is to depress the microphone and ask the client if he

wants to take the stand. Counsel had no present recollection

concerning what he discussed with the petitioner. He thought the

petitioner shook his head “no” but he really could not remember. 

He did recall there was no “give and take” between him and the

petitioner but that they had discussed the advantages and

disadvantages of testifying during trial preparation.

The court finds that the petitioner knew he had the right to

testify, that on a number of occasions he made his intention

clear to counsel that he wanted to testify, and that counsel,

knowing his client wanted to testify, did not take the necessary

time to engage in effective communication with his client at the

critical time in the trial when the decision had to be made. The

petitioner did not waive his right to testify.

Counsel had an obligation to communicate effectively with

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the petitioner concerning whether or not he should testify at an

appropriate time in the defense’s case. If that required a

recess, he could have asked for one, and the request would have

been granted. Counsel had an obligation, through effective

communication, to inform the petitioner of his advice concerning

the advantages and disadvantages of testifying and to determine

what the petitioner’s decision was. If the petitioner decided to

testify, counsel had an obligation to call him as a witness even

if it was contrary to counsel’s advice. While the petitioner

clearly had a right to testify in his own defense, there is no

requirement that that right be exercised wisely. Criminal

defendants often choose unwisely to testify in their own behalf

and ultimately it is to their detriment.

As a direct result of counsel’s failure to engage in

effective communication with the petitioner concerning whether or

not he would testify, counsel either mistakenly understood that

the petitioner had changed his mind, on a matter about which he

had been adamant, and had decided not to testify, or counsel

unilaterally made the decision not to put the petitioner on the

stand because of what he perceived to be the disadvantages

associated with doing so. Counsel’s failure to effectively

consult with his client about testifying and his ultimate failure

to allow him to testify fall below an objective standard of

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reasonableness. The petitioner has sustained his burden under

the first prong of Strickland on the second and third claims.

Under the second prong of Strickland the petitioner had the

burden of showing that the outcome of the trial would likely have

been different, or stated another way, that there is a reasonable

probability that he would have been found not guilty had he been

allowed to testify.

At the hearing, the petitioner did not present a coherent

recitation of what he would have testified to had he been

permitted to do so. He reiterated in a general way that he was

in Lowell and not Manchester at the time of the sales. He

admitted that his witnesses were confused as to their testimony

and allowed that if he had testified first, he could have “jogged

my family’s memory.” The petitioner, however, misunderstands

what import his testimony might have had on the testimony of his

family witnesses. The witnesses were sequestered, so even if the

petitioner had testified first, he would not have been able to

jog their memories. The very purpose of sequestration is to

prevent witnesses from either advertently or inadvertently

conforming their testimony to the testimony of other witnesses in

the case. Sequestration is one of several important means by

which to determine the truth about events when more than one

witness is involved in them. The court concludes based on the

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information before it that had the petitioner testified he would

in all probability have added to the confusion surrounding his

alibi defense to his detriment.

There were other issues that would have adversely affected

the petitioner’s alibi defense. He had a prior record and part

of that record would probably have been admitted for the limited

purpose of assessing his credibility. In addition, the

prosecutor indicated to defense counsel that if petitioner

testified, the government would inquire into a related incident

in which the petitioner took money from an undercover officer and

never provided the drugs in exchange. It is likely that evidence

of this related incident would have been admitted. 

The evidence against the petitioner was indeed overwhelming. 

Given the confusion surrounding the alibi and mistaken identity

defenses, and the likelihood that the petitioner would have added

to that confusion with testimony the credibility of which would

have been questioned, the court finds that it is highly

improbable that the result in this case would have been different

had the petitioner testified. The petition has failed to meet

his burden under the second prong of Strickland on claims two and

three.

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Petition dismissed.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

September 22, 2005

cc: Paul J. Haley, Esquire

Peter E. Papps, Esquire

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