NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-1907
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                 JOSEPH P. DONAHUE,
                                                   Appellant
                                     ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 3-11-cr-00033-001)
                      District Judge: Honorable A. Richard Caputo
                                      ____________

                       Submitted under Third Circuit LAR 34.1(a)
                                   October 29, 2019

       Before: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges.

                                (Filed: November 1, 2019)

                                      ____________

                                        OPINION *
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
HARDIMAN, Circuit Judge.

       Joseph P. Donahue appeals an order of the District Court denying his motion to

vacate his convictions under 28 U.S.C. § 2255. Donahue argues that he was deprived of

his Sixth Amendment right to assistance of counsel under United States v. Cronic, 

(1984), claiming his lawyer was unconscious during the trial. Because the judge

who presided at Donahue’s trial appropriately rejected that premise, we will affirm.

                                             I

       In 2010, we affirmed Donahue’s convictions on four counts of bank fraud, ten

counts of using a credit card with intent to defraud, one count of money laundering, and

one count of making false statements. United States v. Donahue, 460 F. App’x 141, 142

(3d Cir. 2012). After Donahue failed to report to serve his sentence on those convictions,

he was convicted of failure to surrender and three firearms offenses. United States v.

Donahue, 681 F. App’x 171, 172 (3d Cir. 2017). Donahue appealed two of those four

counts of conviction. We affirmed again, 

United States Supreme Court denied

certiorari, see Donahue v. United States, 

(2017).

       In November 2017, Donahue filed the § 2255 petition at issue here. Donahue

claimed his attorney, William Ruzzo, performed so poorly at trial in August 2015 that

Donahue was denied counsel under Cronic. According to Donahue, Ruzzo had a serious

medical condition that required him to “cancel numerous appointments [with Donahue]”




                                             2
before trial and rendered Ruzzo “effectually incapacitated at numerous and crucial times”

during the trial. App. 74, 61. Donahue claimed that Ruzzo’s condition was “visible

throughout the ten day trial”—so visible that “[t]he presiding judge . . . certainly

observe[d] [Ruzzo’s] lapses” and “on numerous occasions acted to bring [Ruzzo] out of

his . . . stupor [by] calling out, ‘Mr. Ruzzo? Mr. Ruzzo?’” App. 70. Donahue also claimed

that “[d]efense team assistants . . . at various times took steps to nudge defense counsel

back into reality,” that “[j]ury members observed [Ruzzo’s] lapses throughout the trial,”

and that he voiced frustrations to Ruzzo and to defense assistants. 

that Ruzzo,

Ruzzo’s physician, defense assistants, and jury members all could attest that his

assertions were true.

       The Government countered that Ruzzo was “alert, engaged and effective

throughout the trial.” App. 99. In reply, Donahue conceded that “[t]hroughout most of the

trial [Ruzzo] was a staunch advocate” and that he was “effective and obviously

cognizant” when examining witnesses. App. 110. Nevertheless, Donahue insisted that

Ruzzo was ineffective during the “drawn out direct examinations of the government

witnesses,” during which Ruzzo was “seated and inactive.” 

21, 2018, the District Court denied Donahue’s motion without an

evidentiary hearing. The Court rejected Donahue’s request to apply Cronic, holding that

Strickland v. Washington, 

(1984), applies when a defendant claims




                                              3
ineffectiveness “based on counsel’s physical or mental health.” United States v. Donahue,

, at *5 (M.D. Pa. 2018).

       Drawing on his first-hand observation of Ruzzo’s performance at the trial and his

review of the record, Judge Caputo rejected Donahue’s assertions and held Donahue

could not satisfy either prong of the familiar Strickland test. He found:

              First, Donahue has not cited to any instances in the record where his
              counsel’s performance fell below an objective standard of reasonableness.
              Contrary to Donahue’s claim that his counsel was “unconscious” at points
              during the trial, the record is clear that his counsel was alert and attentive
              during the entirety of the proceedings. Donahue’s counsel subjected the
              Government’s case to meaningful adversarial testing, including conducting
              appropriate cross-examinations of the Government’s witnesses. In addition,
              counsel called numerous witnesses in support of Donahue’s defense. And
              based on my personal knowledge of counsel’s performance as having been
              the presiding judge at trial, I note that counsel was actively engaged in the
              proceedings at all times . . . .

              Donahue also fails to demonstrate prejudice . . . . Again, Donahue fails to
              point to any errors or omissions by his counsel, and he is likewise unable to
              identify how his counsel’s unidentified errors would have produced a
              different outcome at trial . . . .

, at *6. He then denied Donahue a certificate of appealability.

       Donahue requested a certificate of appealability from this Court wherein he

retreated from his earlier claim that the District Court “certainly observe[d]” Ruzzo’s

lapses. App. 70. This time, he argued that the District Court “cannot possibly pay

attention to what is silently going on at the defense table on the other side of the room or

possibly be aware that the open eyed 1000 yard stare on the face of [Ruzzo] was



                                              4
indicative of [Ruzzo] being in an unconscious state, a stupor, at various points during the

ongoing trial.” App. 8. Donahue maintained that the trial judge sometimes “aroused

[Ruzzo] from his slumber with a, ‘Mr. Ruzzo? Mr. Ruzzo?’” 

asserted that

Ruzzo had life-saving surgery to address his medical condition shortly after trial. And

when Ruzzo died a few weeks after Donahue filed this appeal (but more than three years

after Donahue’s trial), Donahue notified us of this fact.

       We issued a certificate of appealability to consider whether the District Court

erred in denying, without an evidentiary hearing, Donahue’s claim that Ruzzo was

ineffective based on Ruzzo’s medical condition.

                                              II 1

       A federal habeas petitioner like Donahue is entitled to an evidentiary hearing

“[u]nless the motion and files and records of the case conclusively show that the prisoner

is entitled to no relief.” 28 U.S.C. § 2255(b).

       Here, the District Court did not abuse its discretion in determining no hearing was

necessary. The record, supplemented by the trial judge’s personal knowledge of Ruzzo’s

performance, conclusively negated Donahue’s claim that Ruzzo was unconscious at trial.

See Donahue, 

, at *4 n.4. Our caselaw permits the Court to negate a




       1
        The District Court had jurisdiction under 28 U.S.C. § 2255 and 28 U.S.C.
§ 2241. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253.


                                               5
petitioner’s factual assertions in this manner. See Gov’t of V.I. v. Nicholas, 

, 1075 (3d Cir. 1985) (holding no hearing was necessary where “the record,

supplemented by the trial judge’s personal knowledge, conclusively negate[d] the factual

predicates asserted by [the petitioner]”).

       In fact, our review of the trial transcript corroborates the District Court’s account

of Ruzzo’s performance. For example, Ruzzo questioned and moved to strike potential

jurors, delivered a lengthy opening statement, cross-examined the government’s

witnesses, called numerous witnesses in Donahue’s defense, introduced numerous

exhibits, successfully objected to the prosecution’s cross-examination of Donahue,

discussed jury instructions with the Court and opposing counsel, delivered a lengthy

closing statement, and successfully objected to the government’s rebuttal.

       Donahue failed to cite anything in the record to support his assertion that the

District Court tried to rouse Ruzzo by calling out his name. Nor did our independent

review find such an occurrence. So we cannot disturb the District Court’s factual finding

that Ruzzo was conscious at trial.

       In view of this finding, we readily conclude that the District Court correctly

determined that Donahue’s remaining allegations did not entitle him to relief as a matter

of law. See United States v. Dawson, 

, 927–28 (3d Cir. 1988) (stating no

hearing is necessary where “those claims that are nonfrivolous conclusively fail to show




                                              6
ineffective assistance of counsel”). Donahue’s remaining allegation on appeal is that

Ruzzo’s medical condition may have affected his performance at trial. Donahue Br. 13.

But because this allegation does not establish the sort of actual or constructive denial of

counsel that Cronic contemplated, see Bell v. Cone, 

, 695–96 (2002),

Strickland applies. See Bellamy v. Cogdell, 

, 308 (2d Cir. 1992) (“[G]iven

the varying effects health problems can have on an individual’s ability to function, claims

of ineffective assistance based on attorney illness are best suited to the fact-specific

prejudice inquiry mandated by Strickland.”). As the District Court held, Donahue cannot

satisfy either of Strickland’s prongs because he has not cited to any instances in the

record where Ruzzo’s performance fell below an objective standard of reasonableness or

established a likelihood that the outcome of his trial would have been different but for

Ruzzo’s alleged ineffectiveness. Thus, the Court did not err when it held that Donahue is

not entitled to relief as a matter of law.

                                        *     *       *

       In sum, Donahue’s “bald assertions and conclusory allegations do not provide

sufficient ground . . . to require an evidentiary hearing,” Zettlemoyer v. Fulcomer, 

, 301 (3d Cir. 1991) (internal citations omitted). This is especially so because

they contradict the record and the trial judge’s personal knowledge of the trial. We will

therefore affirm.




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