Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-2387

BEVIL CAMPBELL,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Bevil Campbell on Request for Certificate of Appealability for

appellant.

August 25, 2004
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Per Curiam. Bevil Campbell seeks a certificate of

appealability ("COA") to appeal from the district court's denial of

his motion pursuant to 28 U.S.C. § 2255. Campbell was convicted

following a jury trial of conspiracy to import a controlled

substance, aiding and abetting the importation of a controlled

substance, and conspiracy to possess a controlled substance with

intent to distribute. He was sentenced to 121 months'

imprisonment, to be followed by 48 months' supervised release. His

conviction and sentence were affirmed on direct appeal. See United

States v. Campbell, 268 F.3d 1 (1st Cir. 2001).

Campbell requests a COA to raise on appeal all of the

ineffective assistance of trial and appellate counsel claims he

raised in his § 2255 motion. A COA may issue "only if the applicant

has made a substantial showing of the denial of a constitutional

right." 28 U.S.C. § 2253(c)(2).

The COA determination under § 2253(c) requires

an overview of the claims in the habeas

petition and a general assessment of their

merits. We look to the District Court's

application of AEDPA to petitioner's

constitutional claims and ask whether that

resolution was debatable among jurists of

reason.

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 

"To successfully claim ineffective assistance of counsel

under the Sixth Amendment, a defendant must establish that his

counsel's performance fell below an objective standard of

reasonableness and 'that there was a reasonable probability that,
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but for counsel's unprofessional errors, the results of the

proceeding would have been different.'" United States v. Theodore,

354 F.3d 1, 5-6 (1st Cir. 2003)(quoting Strickland v. Washington,

466 U.S. 668 (1984)). With regard to the performance aspect of the

standard, this court has held that it "demands a fairly tolerant

approach," Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir. 1994), and that

"since even the most celebrated lawyers can differ over trial

tactics in a particular case, a reviewing court must indulge a

strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance.'" Id. (quoting

Strickland, supra).

The Supreme Court has held that "appellate counsel who

files a merits brief need not (and should not) raise every

nonfrivolous claim, but rather may select from among them in order

to maximize the likelihood of success on appeal." Smith v. Robbins,

528 U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745

(1983)). Although it "is still possible to bring a Strickland

claim based on counsel's failure to raise a particular claim," the

Court has indicated that satisfying the first part of the

Strickland test requires a showing that the ignored issues were

"clearly stronger than issues that counsel did present." Robbins,

528 U.S. at 288.

Having thoroughly reviewed the record, including the

trial transcripts, we agree with the district court that
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"[o]verwhelmingly, what Campbell asserts as errors are more

appropriately viewed as strategic decisions with which Campbell, in

hindsight, disagrees." District Court's Memorandum and Order,

9/4/02, p. 12. Our overview of Campbell's claims and assessment of

their merits leads us, essentially for the reasons stated by the

district court, to find that reasonable jurists could not debate

the conclusion that Campbell's ineffective assistance claims are

without merit. We add the following comments with respect to

certain of the claims.

Campbell faulted his trial counsel for failing to move

for suppression of derivative evidence for violation of his Fourth

Amendment rights. However, the district court's finding that

Campbell was "in custody" for Fifth Amendment purposes would not

necessarily dictate a finding that he had been unreasonably seized

for Fourth Amendment purposes and that all evidence derivative of

that seizure should be suppressed. See United States v. Newton, 369

F.3d 659, 673 (2d Cir. 2004) (discussing differences between two

standards). Moreover, Campbell has failed to make a substantial

showing that the exclusion of the evidence derived from his seizure

at the airport would likely have resulted in his acquittal. 

Similarly, reasonable jurists could not find a reasonable

probability that the exclusion of Campbell's statements to customs

officials at the time of his seizure would have resulted in

acquittal on any of the counts. In view of the substantial direct
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evidence of Campbell's involvement in the charged conspiracy, the

statements have only marginal significance. Therefore, Campbell

has not made the requisite showing that defense counsel's crossexamination of a government witness which led the court to reverse

its decision to exclude the statements, constituted ineffective

assistance of counsel.

Campbell faults both his trial and appellate counsel for

failing to argue that the supervised release term violated the rule

of Apprendi v. New Jersey, 530 U.S. 466 (2000), because it "exceeds

the term prescribed by 21 U.S.C. § 841(b)(1)(C)." § 2255 Motion, p.

34. However, that statute prescribes a minimum term of supervised

release of three years, and no maximum term. See United States v.

Lopez, 299 F.3d 84, 90 (1st Cir. 2002), cert. denied, __ U.S. __,

124 S.Ct. 1095 (2004). Therefore, reasonable jurists could not

dispute that Campbell's attorneys were not ineffective for failing

to challenge the supervised release term on that basis.

Campbell argues that appellate counsel was deficient for

failing to challenge the district court's excusal of one of two

black jurors. After the close of evidence and prior to closing

arguments, the juror had expressed to the clerk her concern that

because she "runs in the same circles" within the CarribeanAmerican community in Boston as the defendant, she might be

recognized by Campbell's family and friends as a juror on his case.

After a colloquy between the court, counsel and the juror, the
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court supportably found that the juror "is genuinely concerned

about her safety and that that would interfere with her being open

and candid and participating with the other jurors in the

deliberations in the case."

Under the Federal Rules of Criminal Procedure, "[t]he

court may impanel up to 6 alternate jurors to replace any jurors

who are unable to perform or who are disqualified from performing

their duties." Fed.R.Crim.P. 24(c)(1) (emphasis added). The court

has substantial discretion in decisions to excuse jurors. See

United States v. Gonzalez-Soberal, 109 F.3d 64, 66 (1st Cir. 1997).

A judge may remove a juror "when 'convinced that the juror's

abilities to perform his duties [have] become impaired.'" United

States v. Walsh, 75 F.3d 1, 5 (1st Cir. 1996). Here, the transcript

of the voir dire with the juror supports the judge's finding that

the juror's fear would impair her ability to perform her duties.

There is no suggestion from the record, and Campbell does not

allege, that the juror was excused because of her race. And the

fact that there was only one juror of the defendant's race on the

jury, standing alone, is not ground for reversal. "[A] defendant

has no right to a 'petit jury composed in whole or in part of

persons of his own race.'" Batson v. Kentucky, 476 U.S. 79, 85

(quoting Strauder v. West Virginia, 100 U.S. 303, 305 (1880)).

Therefore, reasonable jurists could not find that this issue was

clearly stronger than those presented by appellate counsel.
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Finally, Campbell is not entitled to a COA to pursue the

claim that counsel was ineffective for failing to anticipate the

Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct.

2531 (2004). On appeal, this court held that there was no Apprendi

violation because Campbell was sentenced below the statutory

maximum of 240 months. See 21 U.S.C. § 841(b)(1)(C). In his § 2255

motion, Campbell argued that appellate counsel should have argued

that Apprendi was violated because Campbell's base offense level

under the sentencing guidelines was enhanced based on the drug

quantity. He has now filed an addendum to his COA memorandum in

which he asks that Blakely "be applied in evaluating the arguments

which he has placed before the court." Notice of Supplemental

Authority, p. 1.

This case does not require us to decide whether Blakely

applies to the federal sentencing guidelines or whether it applies

retroactively to cases on collateral review. Because Campbell

stipulated at trial to a drug quantity that corresponded to the

base offense level used to calculate his sentence, he cannot show

that he was prejudiced by the failure to charge the specific drug

quantity in his indictment. See United States v. Riggs, 347 F.3d

17, 20 (1st Cir. 2003), cert. denied, __ U.S.__, 124 S.Ct. 1095

(2004). Moreover, counsel's failure to anticipate Blakely would

not constitute unreasonable performance under Strickland because

"First Circuit jurisprudence on this point ha[d] been well
1 To the extent that petitioner is seeking to assert a new

claim based on Blakely (rather than to provide supplemental support

for his ineffective assistance claim), he would be required to

present that claim first in the district court. Certification to

file a second or successive petition could not be granted unless

the Supreme Court had held that Blakely applied retroactively to

cases on collateral review. 28 U.S.C. § 2255.

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established." Campbell, 268 F.3d at 7, n.7. Therefore, reasonable

jurists could not find that he has made a substantial showing that

the Blakely issue would have been clearly stronger than the issues

raised by appellate counsel.1

Campbell's request to proceed IFP is granted, but his

request for a COA is denied. The appeal is terminated.