NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 19-2774
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                     JOSEPH MASSIMINO, also known as Mousie,
                                   Appellant
                                _____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 2:09-cr-00496-004)
                     District Judge: Honorable Eduardo C. Robreno
                                     _____________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   September 8, 2020
                                    _____________

           Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges

                               (Filed: September 11, 2020)

                                      ____________

                                        OPINION *
                                      ____________




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

       Joseph Massimino was sentenced to 188 months of imprisonment after being

convicted of conspiracy to participate in a racketeering enterprise in violation of the

Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d). He

now challenges the District Court’s denial of his motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255. We will affirm.

                                                 I.

       We write only for the parties, so our summary of the facts is brief. In January

2011, Massimino was indicted for participating in a racketeering enterprise. He and six

other defendants proceeded to trial, which lasted over four months. The jury convicted

Massimino of RICO conspiracy, but was unable to reach a unanimous verdict on three

counts relating to conducting an illegal gambling business. Massimino was sentenced to

188 months of imprisonment. On direct appeal, we affirmed his conviction and sentence.

See United States v. Massimino, 641 F. App’x 153 (3d Cir. 2016).

       After his unsuccessful direct appeal, Massimino filed a motion under 28 U.S.C.

§ 2255, alleging that his trial counsel, Joseph Santaguida, was ineffective on multiple

grounds. Relevant here is Massimino’s claim that Santaguida was ineffective by sleeping

through a substantial portion of the trial. The District Court permitted limited discovery

and held five days of evidentiary hearings, during which seven witnesses testified.

       The District Court ultimately denied Massimino’s motion, finding, inter alia, that

“Massimino has failed to adduce sufficient evidence to show that Santaguida fell asleep

during the trial, either for a substantial portion of the trial or at a critical point in the


                                                 2
trial.” Joint Appendix (“J.A.”) 32–33. Based on these findings, the court held that (1)

“prejudice cannot be presumed . . . such that Massimino was effectively denied

representation,” J.A. 35, under the Supreme Court’s decision in United States v. Cronic,

(1984); and (2) in the absence of presumed prejudice, his ineffectiveness

claim under Strickland v. Washington, 

(1984), fails because he did not

“show specifically how he was prejudiced by any inattentiveness by Santaguida such that

there is a substantial likelihood that the outcome of the trial would have been different,”

J.A. 35.

       Massimino timely sought leave to appeal and we granted a certificate of

appealability as to “whether the District Court erred in denying [Massimino’s] claim that

counsel was ineffective by allegedly sleeping at various times during trial.” Certificate of

Appealability, United States v. Massimino, No. 19-2774 (3d Cir. Dec. 17, 2019).

                                             II.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 2255, and we

have jurisdiction under 28 U.S.C. §§ 1291, 2253(a), and 2255(d). When reviewing the

denial of a § 2255 motion, we examine “legal determinations de novo, factual findings

for clear error, and matters committed to the District Court’s discretion for abuse

thereof.” United States v. Doe, 

, 142 (3d Cir. 2015).




                                             3
                                              III.

       The District Court found that Massimino’s trial counsel was not asleep for a

substantial portion of the trial or for any critical portion, and on that basis denied his

ineffectiveness claim. Massimino argues that this was error, but we disagree. 1

       At the outset, we note that the District Court’s factual findings as to if and for how

long Santaguida slept are reviewed for clear error. “A finding is ‘clearly erroneous’

when although there is evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.” United

States v. U.S. Gypsum Co., 

, 395 (1948). It does not matter whether we

“would have weighed the evidence differently,” if the district court’s “account of the

evidence is plausible.” Anderson v. City of Bessemer City, 

, 574 (1985).

Indeed, “[w]here there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.”

  Most claims of ineffective assistance of counsel are governed by the test set forth in
Strickland, where a defendant must show both that counsel’s performance was deficient,
and that the deficient performance resulted in prejudice to the 

, 694. But in Cronic, the Supreme Court recognized a narrow exception to
Strickland’s prejudice requirement, where “circumstances [] are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is 

. Although we have not yet considered whether Cronic’s presumption of prejudice
applies when defense counsel falls asleep, we need not do so at this time because it is not
necessary to our holding today. Rather, we assume without deciding that it does, and use
the standard set forth by our sister Courts of Appeals which have considered the issue:
that a defendant is entitled to a Cronic presumption of prejudice where counsel was
asleep for a substantial portion of the trial or at a critical point in the trial. See United
States v. Ragin, 

, 619 (4th Cir. 2016) (collecting cases).

                                               4
       Based on the testimony presented at the hearing, the District Court determined that

“Massimino has failed to show that Santaguida slept at a critical time or during a

substantial portion of the trial such that Massimino was effectively denied

representation.” J.A. 35. In so finding, the District Court evaluated the testimony of four

witnesses. First, the court determined that two individuals participating at trial did not

observe Santaguida sleeping. The first, Special Agent John Augustine, “was present for

all but one or possibly two days of the trial,” “observed what was happening at the

defense table,” and “only once during the trial did he see Santaguida with his eyes closed,

appearing to have ‘nodded off.’” J.A. 32; see also J.A. 565–66, 570, 573. Second,

Lawrence O’Connor, who represented a co-defendant at trial, testified that while “he was

not in the best position to observe Santaguida (because he was seated in front of

Santaguida during trial),” O’Connor “never saw Santaguida sleeping during the trial,

never heard him snoring, and [] no one reported any such incidents to him.” J.A. 32; see

also J.A. 546–47, 560–61. The District Court found that the testimony of these witnesses

was credible. Cf. J.A. 33 (District Court finding that “Augustine saw Santaguida with his

eyes closed only once, despite observing the defense table during the trial” and

“O’Connor never saw or heard Santaguida sleeping”).

       By contrast, Massimino testified that Santaguida “‘slept every day’ during trial,”

and that either Massimino or his co-defendant “would kick Santaguida’s chair to wake

him.” J.A. 32; see also J.A. 465 (Massimino testifying that “[s]ometimes [Santaguida]

would snore”). Edwin Jacobs, an attorney representing a co-defendant, sat next to

Santaguida throughout the trial. Jacobs testified, with regard to the four-day trial weeks,


                                              5
“I’m sure there were weeks when [Santaguida sleeping] happened once and weeks where

it happened twice and probably weeks when it happened three times[, but] I can’t say it

ever happened daily. And maybe there were weeks when it didn’t happen.” J.A. 509.

But the District Court found this testimony less credible: “Massimino’s and Jacob’s

testimonies do not accord because Jacobs never noticed Massimino wake Santaguida.

Importantly, Jacobs never reported to the Court, to other counsel, or to any professional

board his concerns about Santaguida sleeping, although he would have had a duty to do

so.” J.A. 33.

       Given the District Court’s detailed factual findings and reasonable credibility

determinations, we are not “left with the definite and firm conviction that a mistake has

been committed.” U.S. Gypsum 

. Yet Massimino still contends on

appeal that the District Court committed clear error, because “[t]estimony that

[Santaguida] slept repeatedly during the trial was uncontradicted by witnesses at the

evidentiary hearing.” Massimino Br. 22. This argument essentially amounts to

disagreements with the District Court’s factual findings and credibility determinations. 2

But as the Supreme Court has cautioned, a “reviewing court oversteps the bounds of its

duty . . . if it undertakes to duplicate the role of the lower court,” because our “function is


2
  For example, Massimino claims that “[i]t was unanimous that [Santaguida] slept often,
that he snored and that this was a regular naptime while court was in session.”
Massimino Br. 13. But this assertion is belied by the record. Indeed, while this may
have been the testimony of Massimino, Agent Augustine’s and O’Connor’s testimony are
certainly not “unanimous” on those points. See, e.g., J.A. 570 (Augustine testifying that
he saw Santaguida fall asleep once during the four-month trial, for a “period of
minutes”); J.A. 546–47, 560–61 (O’Connor testifying that he neither saw Santaguida
sleeping, nor heard him snoring during the trial).

                                               6
not to decide factual issues de novo.” 

. So even if we agreed

that Massimino’s view of the facts was plausible, “the factfinder’s choice between [two

permissible views of the evidence] cannot be clearly erroneous.”

       The District Court did not commit clear error by finding that Massimino failed to

show that Santaguida fell asleep for a substantial portion of, or at a critical point during,

the trial, such that the Cronic presumption of prejudice is triggered. Compare 

–16, 619 (presuming prejudice where a juror saw defense counsel sleep nearly

every day of two-week trial for thirty minutes at a time and every witness who testified

stated that counsel was asleep at some point); Tippins v. Walker, 

, 687–89

(2d Cir. 1996) (concluding defendant suffered prejudice where defense counsel “slept

every day of the trial,” including during the testimony of a “critical” prosecution witness

and the “damaging” testimony of a co-defendant), with Muniz v. Smith, 

,

623–24 (6th Cir. 2011) (declining to presume prejudice where a juror stated defense

counsel slept for a “brief period” during an undetermined portion of the cross-

examination of defendant).

       And in the absence of presumed prejudice under Cronic, Massimino must show

actual prejudice under Strickland for his ineffectiveness claim to succeed. See

(explaining that to show prejudice, “[t]he defendant must

show that there is a reasonable probability that, but for counsel’s unprofessional errors,




                                              7
the result of the proceeding would have been different”). Because he has not done so,

Massimino’s claim fails. 3

                                           IV.

       For these reasons, we will affirm the District Court’s denial of Massimino’s

§ 2255 motion.




3
  We also deny Massimino’s request to expand the certificate of appealability “to include
the mental health portion of the argument” — that is, evidence of “Santaguida’s sleep
apnea and Alzheimer’s disease,” Massimino Br. 14 — most of which the District Court
disallowed as irrelevant to the issue of whether Santaguida’s performance was deficient.
Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
Massimino does not satisfy this standard, instead rehashing a discovery dispute which the
District Court resolved appropriately. Nor do we address Massimino’s argument —
outside the scope of the certificate of appealability — that Santaguida had a medical
condition which he did not disclose to Massimino because of a conflict of interest. See
3d Cir. L.A.R. 22.1(b); see also Miller v. Dragovich, 

, 577 (3d Cir. 2002)
(refusing to address an argument that was outside the scope of the certificate of
appealability).

                                            8