United States Court of Appeals 

For the First Circuit 

No. 13-1496 

JOSÉ LUIS CASIANO-JIMÉNEZ, 

Petitioner, Appellant, 

v. 

UNITED STATES OF AMERICA, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. José Antonio Fusté, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Torruella and Selya, Circuit Judges. 

 David Ramos-Pagán for petitioner. 

 Tiffany V. Monrose, Assistant United States Attorney, with 

whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and 

Nelson Pérez-Sosa, Assistant United States Attorney, Chief, 

Appellate Division, were on brief, for respondent. 

March 29, 2016 
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SELYA, Circuit Judge. A criminal defendant's right to 

testify in his own behalf — or, conversely, not to testify — is a 

critically important right. Given the salience of the right, a 

defendant is entitled to be fully briefed so that he may make an 

informed choice. In this case, the defendant did not receive his 

due. Consequently, the district court erred in denying the 

defendant's petition for post-conviction relief under 28 U.S.C. 

§ 2255. 

I. BACKGROUND

We sketch the factual and procedural terrain in broad 

strokes. The reader who thirsts for more exegetic details may 

slake that thirst by consulting our opinion rejecting the 

petitioner's direct appeal. See United States v. AnguloHernández, 565 F.3d 2, 4-7 (1st Cir. 2009). 

In 2009, petitioner-appellant José Luis Casiano-Jiménez 

was convicted of conspiring to smuggle narcotics by ship into the 

United States. At trial, the petitioner's defense was based on 

lack of knowledge: he maintained that he was unaware that any 

contraband was clandestine aboard the ship. None of the seven 

defendants (including the petitioner) took the stand to testify. 

Rather, they presented a joint defense through a single expert who 

examined the vessel and opined that — based on the hidden location 

of the contraband — it was possible that none of the crew members 

were aware that drugs were on board. 
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The jury found the captain and the engineer, along with 

the petitioner (whom the government characterized as the ship's 

first officer) and one other crew member, guilty of conspiring to 

possess controlled substances with intent to distribute and aiding 

and abetting.1 See 18 U.S.C. § 2(a); 46 U.S.C. §§ 70503(a)(1), 

70506(b). The jury acquitted three other crew members (all 

ordinary seamen). The district court proceeded to sentence the 

convicted defendants (including the petitioner) to lengthy prison 

terms. 

On direct review, the convicted defendants challenged 

the jury verdicts on various grounds, including the alleged 

insufficiency of the evidence. We affirmed, though one member of 

the panel dissented on the basis that the evidence, though 

sufficient to support the verdicts against the captain and the 

engineer, did not suffice to show that the other two convicted 

defendants (including the petitioner) were aware of any drugs being 

on board. See Angulo-Hernández, 565 F.3d at 13-18 (Torruella, J., 

concurring in part and dissenting in part). The petitioner 

unsuccessfully sought both rehearing en banc and a writ of 

certiorari, and his conviction and sentence became final. 

 

 1 The jury also found this group of defendants guilty of aiding 

and abetting the possession of a machine gun. See 18 U.S.C. 

§§ 2(a), 924(c)(1)(B)(ii). The district court, however, wiped out 

this portion of the jury verdict, granting judgments of acquittal 

across the board. See Fed. R. Crim. P. 29(c). 
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The petitioner filed a timeous section 2255 petition for 

post-conviction relief that raised, inter alia, a claim that his 

trial counsel was ineffective for failing to advise him of his 

right to testify in his own behalf.2 The district court denied 

the petition and refused to grant a certificate of appealability 

(COA). See 28 U.S.C. § 2253(c)(2). This court granted a COA, 

however, limited to the plaint that the petitioner was entitled to 

an evidentiary hearing on his ineffective assistance of counsel 

claim. By unpublished order, we then remanded the case to the 

district court for such an evidentiary hearing. See CasianoJiménez v. United States, No. 11-2049 (1st Cir. Nov. 30, 2012) 

(unpublished order). 

The district court held the evidentiary hearing in March 

of 2013. The petitioner and his trial counsel, Frank Inserni, 

both testified. They agreed that Inserni had never explained to 

the petitioner either that he had a right to testify in his own 

behalf or that the decision to do so belonged exclusively to him. 

Inserni added that the lawyers for all the defendants collectively 

decided that "it would be detrimental" to have any of the 

defendants testify. They chose instead to retain a single expert 

to present a "lack of knowledge" defense on behalf of all the 

 

 2 The petitioner also put forth other grounds for section 2255 

relief, but those grounds have been abandoned and need not concern 

us. 
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defendants. The lawyers proceeded to communicate this strategy to 

the defendants at a group meeting. 

The petitioner's testimony fit seamlessly with Inserni's 

testimony. The petitioner acknowledged that he had spoken to 

Inserni about testifying, but confirmed that Inserni had not 

advised him of his right to testify. He likewise corroborated 

Inserni's version of what was said at the group meeting. 

In a three-page unpublished order, the district court 

again rejected the section 2255 petition. It also declined — as 

it had before — to issue a COA. The petitioner nevertheless filed 

a notice of appeal. He then requested and received a COA from 

this court. Briefing and oral argument followed,3 and we took the 

matter under advisement. 

II. ANALYSIS

Our analysis begins with an overview of the legal 

landscape and then proceeds to the merits of the petitioner's 

appeal. 

A. The Legal Landscape.

"[T]he appropriate vehicle for claims that the 

defendant's right to testify was violated by defense counsel is a 

 

 3 Shortly before oral argument in this court, the government 

informed us that the petitioner had completed his prison term and 

had been returned to Colombia. He remains subject, however, to a 

5-year term of supervised release, and the government concedes 

that his appeal is not moot. 
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claim of ineffective assistance of counsel." United States v. 

Teague, 953 F.2d 1525, 1534 (11th Cir. 1992). Such a claim may 

properly be raised by a petition for post-conviction relief under 

28 U.S.C. § 2255. See Owens v. United States, 483 F.3d 48, 56 

(1st Cir. 2007). 

Prevailing on an ineffective-assistance claim 

necessitates two showings: the defendant "must demonstrate that 

counsel's performance fell below an objective threshold of 

reasonable care and that this deficient performance prejudiced 

him." United States v. Caramadre, 807 F.3d 359, 371 (1st Cir. 

2015); see Strickland v. Washington, 466 U.S. 668, 687 (1984). 

The prejudice prong requires a defendant to establish that, but 

for counsel's deficient performance, there is a reasonable 

probability that the outcome of the proceeding would have been 

different. See Turner v. United States, 699 F.3d 578, 584 (1st 

Cir. 2012). 

In any trial, a defendant's right to testify in his own 

defense is a "fundamental constitutional right" and is "essential 

to due process of law in a fair adversary process." Rock v. 

Arkansas, 483 U.S. 44, 51, 53 n.10 (1987) (quoting Faretta v. 

California, 422 U.S. 806, 819 n.15 (1975)). The defendant's 

lawyer, rather than the trial judge, bears the primary 

responsibility of informing and advising the defendant of this 

right, including its strategic ramifications. See Teague, 953 
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F.2d at 1533. Similarly, the defendant's lawyer bears the primary 

responsibility of explaining that the choice of whether or not to 

testify belongs to the defendant. See id. It follows inexorably 

that "[t]he right to testify may not be waived by counsel acting 

alone." Owens, 483 F.3d at 58 (citing cases). If the defendant 

is unaware of his right to testify and counsel, without 

consultation, unilaterally declines to call the defendant as a 

witness in his own behalf, the defendant's right to make an 

informed decision has been nullified. See id. at 59. 

Viewed against this backdrop, it is not surprising that 

we have held that an attorney's failure to inform a defendant of 

his right to testify comprises constitutionally deficient 

performance. See id. at 58; see also Teague, 953 F.2d at 1534 

(explaining that such a failure amounts to an attorney's neglect 

of a "vital professional responsibility"). In determining whether 

a lawyer has adequately apprised his client of this fundamental 

right, no particular formulation is required. See Owens, 483 F.3d 

at 60 n.10. There are no magic words; the inquiry is whether "some 

sort of conversation" has occurred between the attorney and his 

client, such that "the client can make a knowing and informed 

decision" regarding whether to testify in his own defense. Id. 

B. The Case at Hand.

We now move from the general to the specific. Where, as 

here, a petitioner appeals the denial of post-conviction relief 
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following an evidentiary hearing, we review the district court's 

findings of fact for clear error. See Owens, 483 F.3d at 57. 

Under this rubric, credibility determinations are entitled to 

equal or greater deference. See Awon v. United States, 308 F.3d 

133, 141 (1st Cir. 2002); Keller v. United States, 38 F.3d 16, 25 

(1st Cir. 1994). Questions of law, however, engender de novo 

review. See Owens, 483 F.3d at 57. 

We start with an appraisal of trial counsel's 

performance. At the evidentiary hearing, Inserni was asked pointblank whether he had advised the petitioner of his right to 

testify. The attorney admitted unequivocally that he had not 

informed the petitioner about this right. Rather, a group meeting 

transpired at which counsel for all of the defendants "explained 

to them . . . that it would not be advisable for any of them to 

take the stand" and that the attorneys had collectively agreed 

that a single expert would present the rudiments of a "lack of 

knowledge" defense on behalf of all the defendants. The 

petitioner's testimony on these points echoed that of his trial 

counsel. 

In a terse rescript, the district court concluded that 

the petitioner's claim was "inherently incredible." The court 

made no explicit credibility findings — yet it refused to credit 

Inserni's and the petitioner's statements that the petitioner had 

never been apprised of his right to testify. Focusing instead on 
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Inserni's description of the joint meeting among the defendants 

and their counsel, the court held that the petitioner had been 

sufficiently notified of his fundamental constitutional right to 

testify. 

Although we recognize that the standard of review is 

deferential, see Awon, 308 F.3d at 141, the foundation upon which 

the district court's holding rests is as insubstantial as a house 

built upon the shifting sands. The holding assumes that the 

discussion at the group meeting served as a sufficient surrogate 

both for the explanation of the right to testify that Inserni owed 

to the petitioner and for the petitioner's informed decision about 

whether to testify in his own defense. For aught that appears, 

those assumptions are plucked out of thin air: their frailty is 

made readily apparent by a careful examination of the testimony 

about the joint meeting. 

Inserni testified that the assembled defense lawyers 

told the assembled defendants that the lawyers "thought an expert 

would be the best way . . . to testify on all their behalf" and 

explained to them that "it was a consensus . . . it would not be 

advisable for any of [the defendants] to take the stand." But 

that consensus was a consensus only among the lawyers. During the 

meeting, no one told the petitioner, in words or substance, that 

he had a right to testify; and no one bothered to obtain his 

informed consent to remaining silent. Plainly, then, the testimony 
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about the meeting cannot support the district court's finding that 

there was a collective and informed decision, reached by all the 

defendants (including the petitioner), that none of them would 

testify. The most that can be said is that the defense lawyers 

unilaterally decided that none of the defendants would testify and 

presented that decision to the defendants as a fait accompli. 

We have admonished that "[t]he right to testify may not 

be waived by counsel acting alone." Owens, 483 F.3d at 58. There 

must be a focused discussion between lawyer and client, and that 

discussion must — at a bare minimum — enable the defendant to make 

an informed decision about whether to take the stand. See id. at 

60 n.10. Here, there is simply no evidence that Inserni shouldered 

even this modest burden. 

Inserni's failure to discuss the right to testify with 

the petitioner is especially troubling given the petitioner's 

profile. After all, the petitioner was an alien who had limited 

proficiency in English and no experience with the American criminal 

justice system. Seen in this light, trial counsel's omission 

verged on the egregious — and there was nothing "inherently 

incredible" about either the petitioner's or Inserni's testimony 

at the section 2255 hearing. 

The short of it is that the record contains no evidence 

sufficient to ground a finding either that the petitioner knowingly 

waived his right to testify or that he was even aware that such a 
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right existed. To the contrary, it appears that trial counsel 

took the bit in his teeth: he decided that the petitioner should 

not testify and then foisted his decision upon the petitioner 

without any meaningful dialogue. This usurpation transgressed 

both the lawyer's professional responsibility to his client and 

the petitioner's constitutional rights. 

The record contains nothing that would suggest a 

justification for such a gross dereliction of duty. We hold, 

therefore, that counsel's omission represented constitutionally 

deficient performance of his duty to his client. 

This brings us to the prejudice prong of the ineffectiveassistance inquiry. The court below did not address this issue 

except to state that the petitioner's testimony would have been 

"the same" as that of the defense expert. We do not agree. 

The defense expert testified, based on his experience 

generally and the concealed placement of the contraband on board 

the ship,4 that it was "possible" that none of the defendants knew 

that the ship contained drugs. Although this testimony aligned 

with the theme of the defense, it fell far short of what the 

petitioner, had he testified, could have added. A party's explicit 

 

 4 The contraband was secreted in a cache below the crew's 

quarters, covered by multiple layers of plywood and placed 

underneath a metal hatch. See Angulo-Hernández, 565 F.3d at 6. 

The concealment was so artfully done that, after the vessel was 

intercepted and seized, it took the Coast Guard almost a week to 

discover the drugs. See id. 
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disclaimer of knowledge may well have more weight than an expert's 

theoretical conclusion. Cf. Rock, 483 U.S. at 52 (observing that 

"the most important witness for the defense in many criminal cases 

is the defendant himself"). That appears to be the case here. 

The petitioner's testimony at the evidentiary hearing 

revealed that he would have been able to tell the jury: 

 prior to the voyage, he had never met either the captain or 

any of the other crew members; 

 he had never before set foot on that particular ship; 

 he signed on to the voyage only as an "able-bodied seaman"; 

 he had no knowledge of drugs being brought onto the ship; and 

 it was not until he was aboard the ship that (to fill a 

vacancy) he was pressed into service as "first officer." 

Contrary to the district court's avowal, the petitioner's 

testimony was not "the same" as the expert's testimony, but was 

materially different (and far more exculpatory). Though the expert 

testified to the petitioner's hypothetical lack of knowledge, the 

petitioner would have testified as to what he actually knew. So 

viewed, the petitioner's testimony could have been a game-changer. 

Cf. Owens, 483 F.3d at 59 (explaining that "[a] defendant's 

testimony as to non-involvement should not be disregarded 

lightly"). 
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The bottom line is that a third party's testimony as to 

what a defendant may have known cannot fairly be equated with the 

defendant's own first-hand account of what he actually knew. Here, 

moreover, the petitioner's testimony would have been significant 

even beyond his direct denial of culpable knowledge. He would 

have explained away his status as "first officer" of the ship, and 

made pellucid that he was a stranger to the captain and the crew. 

These facts would have bolstered the petitioner's claim that he 

was unaware of the presence of any contraband on the ship. 

Given this tableau, prejudice is obvious. The 

petitioner's conviction depended, in material part, on the 

government's ability to persuade the jury that he knew the ship 

was ferrying drugs. See Angulo-Hernández, 565 F.3d at 8. The 

petitioner's testimony would have hit this issue head-on and could 

very well have turned the tide. 

Nor does the record offer any basis for believing that 

the petitioner, properly informed of his rights, would have made 

a tactical decision not to take the stand. Nothing in the record 

militated against the petitioner's testifying in his own defense. 

He had no criminal history, and Inserni testified that when it was 

related to him by the petitioner, he found the petitioner's story 

to be credible. What is more, the petitioner's account was 

consistent with that of the defense expert and it would not have 
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been necessary to alter the joint defense strategy had the 

petitioner elected to testify. 

Last — but far from least — the government's case was 

thin.5 The government's proof was almost entirely circumstantial, 

and three of the petitioner's codefendants — all ordinary seamen 

— were acquitted. We think that this mixed verdict raises a 

substantial question as to whether the petitioner's conviction 

resulted from the government's portrayal of him as the "first 

officer." The petitioner's explanation of how this status came 

about may well have had decretory significance. 

We conclude, without serious question, that there is a 

reasonable probability that the petitioner's testimony could have 

tipped the scales in his favor. See Owens, 483 F.3d at 59 (noting 

that "[a] defendant's testimony could be crucial in any trial"). 

Had the petitioner been appropriately informed of his right to 

testify and had he in fact testified and been found credible by 

the jury, exoneration was a likely prospect. 

III. CONCLUSION

We need go no further. Because the record shows with 

conspicuous clarity both that the petitioner received 

 

 5 Even without the petitioner's testimony, this court divided 

two-to-one on whether the evidence against the petitioner was 

sufficient to convict. See Angulo-Hernández, 565 F.3d at 14-18 

(Torruella, J., concurring in part and dissenting in part). 

Furthermore, notes sent to the court during jury deliberations 

indicated strong divisions among the jurors. 
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constitutionally ineffective assistance of counsel at his criminal 

trial and that he was prejudiced as a result, the district court 

ought to have granted his section 2255 petition. Its failure to 

do so was reversible error. Consequently, we reverse the judgment 

below and remand with instructions to vacate the petitioner's 

conviction and sentence. 

 

Reversed and remanded.