[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

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No. 99-1371

HECTOR R. TUESTA-TORO,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

____________________

Before

Torruella, Chief Judge,

Selya and Lipez, Circuit Judges.

_____________________

Allan E. Junker, with whom Frampton, Williams & Little was on

brief, for appellant.

Warren Vázquez, Assistant United States Attorney, with whom

Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant

United States Attorney, Chief, Criminal Division, and Nelson PérezSosa, Assistant United States Attorney, were on brief, for appellee.

____________________

July 20, 2000

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TORRUELLA, Chief Judge. Héctor Tuesta-Toro appeals the

denial of his petition to vacate his sentence pursuant to 28 U.S.C. §

2255. For the reasons stated below, we affirm.

BACKGROUND

A. Factual Background

The facts of this case were aptly summarized by this Court

in United States v. Tuesta-Toro, 29 F.3d 771, 773 (1st Cir. 1994). We

see no need to duplicate that effort. Accordingly, we reiterate our

previous recitation of the facts largely verbatim.

On September 2, 1992, after receiving information from a

confidential informant ("CI") that petitioner Tuesta-Toro and Carlos

Martínez-Díaz were distributing large quantities of cocaine in the San

Juan metropolitan area, the United States Drug Enforcement

Administration recorded telephone conversations during which Martínez

agreed to sell the CI five kilograms of cocaine at $16,500 per kilogram

and identified Tuesta-Toro as his source. Martínez in turn spoke with

Tuesta-Toro by cellular phone in order to establish the price and

quantity of the cocaine to be sold to the CI and the site of the drug

transaction.

The next day Martínez advised the CI by phone that a

one-kilogram transaction (rather than the five-kilogram transaction

discussed the day before) would take place that afternoon, but that

Tuesta-Toro did not wish to be seen by the buyer. Martínez
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reestablished telephone contact with Tuesta-Toro at 2:40 p.m. En route

to the scene of the transaction, Martínez noted that Tuesta-Toro was

carrying a gun and more than one kilogram of cocaine. At Tuesta-Toro's

instruction, Martínez parked their vehicle so that Tuesta-Toro could

witness the drug deal without being observed. Martínez then exited the

car and delivered the cocaine to the CI, who was accompanied by an

undercover DEA agent. Shortly thereafter, Martínez and Tuesta-Toro

were arrested.

B. Procedural History

Following his arrest, petitioner Héctor Tuesta-Toro was

charged in the United States District Court for the District of Puerto

Rico with possession of cocaine with intent to distribute, see 21

U.S.C. § 841(a)(1), carrying a firearm during a drug trafficking

offense, see 18 U.S.C. § 924(c)(1), and using a communication facility

to facilitate a drug trafficking offense, see 21 U.S.C. § 843(b).

Pursuant to a plea agreement, Martínez testified against petitioner at

trial. Petitioner was subsequently convicted on all counts and

sentenced to 138 months of imprisonment.

On appeal, this Court affirmed the conviction. See generally

Tuesta-Toro, 29 F.3d 771. Petitioner filed a petition for rehearing

and a request for rehearing en banc. Both were denied. Petitioner

then filed a petition for a writ of certiorari, which the Supreme Court

denied. See Tuesta-Toro v. United States, 513 U.S. 1132 (1995).
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On April 26, 1995, petitioner filed a motion to vacate his

sentence pursuant to 28 U.S.C. § 2255. Petitioner raised five claims

in his habeas petition, only two of which he now pursues on appeal:

(1) ineffective assistance of counsel, and (2) a Giglio claim, see

Giglio v. United States, 405 U.S. 150 (1972). In addition, petitioner

now argues on appeal that the district court improperly denied his

Giglio claim without adequate discovery.

The record indicates that on June 21, 1995, petitioner's

habeas counsel moved for leave to propound discovery. The magistrate

judge ruled that petitioner's request was "broad, burdensome on the

government and resembled a fishing expedition on the co-defendant's

case file." Accordingly, petitioner's attorney was instructed to

"identify those portions of the record relevant to his claims of

ineffective assistance of counsel or bias of the trial court."

Petitioner was further advised that once the record was examined, a

hearing, if necessary, could be held. Petitioner appealed the ruling,

but the district court affirmed. The district court order, dated

January 20, 1996, denied discovery relating to (1) an alleged delay in

the sentencing of petitioner's co-defendant, (2) ineffective assistance

of trial counsel, and (3) the prosecution's trial strategy.

This notwithstanding, an evidentiary hearing was held before

the magistrate judge on April 19, 1996. At that hearing, counsel for

petitioner was given the opportunity to question Benito M. Rodríguez-
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Massó, petitioner's trial counsel, in relation to petitioner's

ineffective assistance of counsel claim. After the presentation of

additional witnesses not relevant to this appeal, the magistrate judge

heard oral argument on petitioner's habeas claims. Following oral

argument, the judge denied from the bench petitioner's request for

disclosure of additional information pertaining to the confidential

informant.

On February 24, 1997, petitioner, through counsel, filed a

Motion Requesting Ruling on Pending Discovery Motions. The magistrate

judge issued a written order on March 14, 1997, stating "we conclude

that petitioner's . . . request is MOOT inasmuch as the discovery

requested has been provided, thus his reiterated petitions for what he

has already received are frivolous." The court reasoned, in part,

that:

[E]ven though the minutes of procedure do reflect

that discovery requests pertaining to the

existence and background of a confidential

informant were denied, it remains a fact that

throughout the evidentiary hearing attorney for

petitioner was given ample opportunity to examine

trial attorney Benito Rodríguez-Massó on issues

such as: trial strategy, existence of an

informant, available information regarding the

informant, pretrial motions filed, plea

agreements, the individuals present at the

sentencing hearing, the sentencing court's

demeanor and the existence of a cooperating codefendant . . . . Thus, it is patently clear

that petitioner's prior requests for discovery

(except for a request to submit interrogatories
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to the government and depose the co-defendant)

were satisfied during the hearing.

The court added the following:

Through his broad, general requests for

discovery, counsel has repeatedly violated the

provisions of Rule 6(b) of the 28 U.S.C. § 2255

Rules, which mandate that discovery requests be

specific as to the documents sought. The court

will not allow counsel to engage in a fishing

expedition, absent some showing by him that: 1)

petitioner's claims can remotely entitle him to

relief; and 2) the evidence specifically

requested provides support to those claims. See

DeVincent v. United States, 632 F.2d 145, 146

(1st Cir. 1980).

Shortly thereafter, on March 27, 1998, the magistrate judge

issued its report and recommendation that petitioner's § 2255 motion be

denied. On January 13, 1999, the district court issued an opinion and

order adopting the report and recommendation. On the same day, the

court entered judgment dismissing the case. The instant appeal ensued.

DISCUSSION

I. Ineffective Assistance of Counsel

Petitioner claims that his trial counsel's alleged failure

to obtain information regarding the identity, whereabouts, and criminal

record of the confidential informant in this case constitutes

ineffective assistance of counsel. We disagree.

To succeed on an ineffective assistance of counsel claim,

petitioner "has the burden of showing that (1) counsel's performance

fell below an objective standard of reasonableness, and (2) there is a
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reasonable probability that, but for counsel's error, the result of the

proceedings would have been different." Smullen v. United States, 94

F.3d 20, 23 (1st Cir. 1996). In applying this test, first announced in

Strickland v. Washington, 466 U.S. 668, 687 (1984), "judicial scrutiny

of counsel's performance must be highly deferential." There is, in

other words, a "strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance." Id. As a

corollary, "the defendant must overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound trial

strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101

(1955)). In this regard, this Court has previously stated that "[t]he

decision whether to call a particular witness is almost always

strategic, requiring a balancing of the benefits and risks of the

anticipated testimony." Lema v. United States, 987 F.2d 48, 54 (1st

Cir. 1993).

Here, the record clearly demonstrates that petitioner's

ineffective assistance of counsel claim is untenable. Petitioner's

trial attorney, Rodríguez-Massó, testified before the magistrate judge

that, contrary to petitioner's assertion, he knew the identity of the

confidential informant. He explained that the identity of the

informant had been provided to attorney Rafael Anglada, petitioner's

original trial counsel. Mr. Rodríguez further testified that prior to

trial he ascertained that the informant was not willing to testify on
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behalf of the defense. Accordingly, Mr. Rodríguez believed that "any

information, if at all, that [the informant] would have given at trial

would have been not to [petitioner's] benefit but to [his] detriment."

Under these circumstances, and given the fact that petitioner's codefendant had agreed to testify for the government, Mr. Rodríguez

determined that it was best "as a matter of legal strategy" not to call

the informant as a trial witness. In addition, Mr. Rodríguez stated

that although he was not aware of the informant's criminal record,

which consisted of two complaints pertaining to domestic violence, he

would not have called the informant to testify even if he had seen

those records prior to trial.

Given this evidence, the district court correctly determined

that trial counsel's decision not to personally interview the informant

or call him as a trial witness was purely strategic in nature. This

claim, therefore, cannot succeed. See Strickland, 466 U.S. at 689.

II. Giglio Claim

Petitioner next argues that an alleged delay in the

sentencing of the cooperating co-defendant Martínez prejudiced him

inasmuch as the lenient sentence Martínez received for his cooperation

could have been used by petitioner to impeach Martínez at trial. Once

again, we see no merit in this argument.

The government has a constitutional duty to disclose evidence

that is favorable to a criminal defendant, be it exculpatory or
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impeachment evidence. See Kyles v. Whitley, 514 U.S. 419, 432-33

(1995); United States v. Bagley, 473 U.S. 667, 682 (1985); Brady v.

Maryland, 373 U.S. 83, 86-87 (1963). As petitioner correctly

indicates, evidence of a prior agreement with a government witness not

to prosecute that witness is generally considered impeachment material

and therefore discoverable under Brady. See Giglio v. United States,

405 U.S. 150, 153-54 (1972); see also United States v. Dumas, 207 F.3d

11, 16 (1st Cir. 2000) ("[I]t is clear that impeachment evidence falls

within the Brady rule.").

At trial, Martínez stated that he had not been promised

anything in exchange for his testimony and specifically denied having

received a promise of leniency. While Martínez did indicate that two

of the counts in his indictment were to be dismissed in exchange for

his guilty plea, he clarified that the dismissal of the two counts was

not contingent on his testifying in court. The copy of the plea

agreement, submitted by petitioner, confirms this testimony. Martínez

also indicated that a prior statement he made which exculpated

petitioner was not true. He explained that he had made the prior false

statement under pressure from petitioner to assume responsibility for

the crimes in exchange for a car and other assistance.

There is no question that Martínez ultimately benefitted

from the government's sentencing recommendation, adopted by the

sentencing court, that a downward departure from the Sentencing
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Guidelines was warranted in light of Martínez's substantial assistance.

Nevertheless, we concur with the district court's conclusion that

"[t]he evidence presented at trial shows that [petitioner's]

codefendant did not receive a promise of leniency in exchange for his

testimony." Tuesta-Toro v. United States, No. 95-1522, slip op. at 7-8

(D.P.R. January 11, 1999). This finding forecloses petitioner's

argument. Where, as here, the record clearly indicates that there was

no suppression of exculpatory or impeachment evidence by the

prosecution, a Giglio claim fails as a matter of law.

While we need look no further to reject petitioner's claim,

we note that petitioner has also failed to make the showing of

materiality required under Brady. See Brady, 373 U.S. at 87; see also

Kyles, 514 U.S. at 433-37 (citing Bagley, 473 U.S. at 682). Evidence

is material under Brady only when "there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different." Bagley, 473 U.S. at 682; see

also Kyles, 514 U.S. at 433-35; United States v. Cunan, 152 F.3d 29, 34

(1st Cir. 1998). Therefore, as the Supreme Court has indicated, "[w]e

do not . . . automatically require a new trial whenever 'a combing of

the prosecutors' files after the trial has disclosed evidence possibly

useful to the defense but not likely to have changed the verdict.'"

Giglio, 405 U.S. at 153-54 (quoting United States v. Keogh, 391 F.2d

138, 148 (2d Cir. 1968)). In this case, as the district court
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emphasized, the record is replete with additional evidence of

petitioner's guilt other than Martínez's testimony. The record, for

example, includes recorded phone calls indicating that petitioner was

the supplier of the cocaine and the incriminating testimony of several

other witnesses who testified for the prosecution.

Undaunted by the foregoing, petitioner now alleges that the

district court erred by denying his requests for discovery of Giglio

material. Specifically, petitioner states that he was denied the

opportunity (1) to request a transcript of Martínez's sentencing, (2)

to request all plea or cooperation agreements pertaining to Martínez,

(3) to depose Martínez, and (4) to propound interrogatories on the

government regarding the alleged delay in Martínez's sentencing. We

remain unpersuaded.

Discovery in a habeas proceeding is a matter confided to the

discretion of the district court. See Fed. R. 6(a) Governing 28 U.S.C.

§ 2255 Cases; see also Bracy v. Gramley, 520 U.S. 899, 909 (1997).

Accordingly, discovery rulings in a habeas case are reviewed for abuse

of discretion only. See, e.g., Clark v. Johnson, 202 F.3d 760, 765-66

(5th Cir. 2000); Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir.

1993); see also DeVincent v. United States, 632 F.2d 145, 146 (1st Cir.

1980).

Here, the record indicates that petitioner received an

abundance of discovery, including a full evidentiary hearing held on
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April 19, 1996. While the district court ultimately denied some of

petitioner's discovery requests, it did so on the ground that

"[p]etitioner's request for discovery amounts to no more than

speculative assertions that Giglio material may exist." Tuesta-Toro,

No. 95-1522, slip op. at 7. This ruling is well within the trial

court's discretion.

First, petitioner ignores the fact that "a witness' 'nebulous

expectation of help from the state' is not Brady material." Hill v.

Johnson, 210 F.3d 481, 487 (5th Cir. 2000) (quoting Goodwin v. Johnson,

132 F.3d 162, 187 (5th Cir. 1997)). Second, and more important, " Brady

is not a discovery rule, but a rule of fairness and minimum

prosecutorial obligation." United States v. Beasley, 576 F.2d 626, 630

(5th Cir. 1978) (citing United States v. Agurs, 427 U.S. 97, 107

(1976)). Accordingly, "mere speculation about materials in the

government's files [does not require] the district court or this court

under Brady to make the materials available for [petitioner's]

inspection." United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir.

1986) (quoting United States v. American Radiator & Standard Sanitary

Corp., 433 F.2d 174, 202 (3d Cir. 1970)); see also DeVincent, 632 F.2d

at 146. Finally, pursuant to Rule 6(a), a habeas petitioner is

required to show good cause for discovery requests. See Fed. R. 6(a)

Governing 28 U.S.C. § 2255 Cases. In this case, petitioner has failed

to make any such showing.
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In summary, because the district court did not abuse its

discretion in denying petitioner's request for additional discovery,

and because the record indicates that the prosecution did not suppress

exculpatory or impeachment evidence in this case, petitioner's Giglio

claim fails.

CONCLUSION

For the reasons stated above, we affirm the district court

order dismissing Héctor Tuesta-Toro's 28 U.S.C. § 2255 petition.