USCA1 Opinion
March 27, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2144
UNITED STATES,
Appellee,
v.
PATRICK W. TRACY,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Stahl and Lynch, Circuit Judges.
______________
____________________
Patrick W. Tracy, on brief pro se.
________________
Jay P. McCloskey, United States Attorney and Margaret D.
__________________ _____________
McGaughey, Assitant U.S. Attorney.
_________
____________________
____________________
Per Curiam. Appellant Patrick Tracy appeals the
__________
denial by the United States District Court for the District
of Maine of Tracy's motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. 2255. Tracy also
alleges that the court erred in denying his request for an
evidentiary hearing. We affirm the denial of both the
petition and the hearing, essentially for the reasons given
by the magistrate judge in his recommended decision, dated
August 16, 1995. Only one of Tracy's claims merits further
comment.
During Tracy's trial, three articles appeared in a local
newspaper referring to Tracy's previously having been found
not guilty by reason of insanity in a different case. The
appearance of the articles was noted by the court at the
time. However, the prosecutor and the defense attorney
agreed that it was better not to question the jury on the
matter since to do so might call undue attention to it.
Tracy alleges that the failure of his counsel to request an
examination of the jury constituted ineffective assistance of
counsel. We disagree.
The record makes clear that, both prior to and after the
articles' appearance, the court specifically instructed the
jury not to listen to or to read accounts of the trial.
Absent evidence to the contrary, jurors are presumed to
follow a court's instruction, United States v. Boylan, 898
_____________ ______
F.2d 230, 263 (1st Cir.), cert. denied, 498 U.S. 849 (1990),
____ ______
and no evidence existed at the time, nor has any since been
presented, that any member of the jury was aware of the
articles in question. In such circumstances, Tracy's
counsel's decision not to request an examination of the
jurors may reasonably be understood as sound strategy to
avoid calling undue attention to the articles. See United
___ ______
States v. Anello, 765 F.2d 253, 259 (1st Cir.) (absent any
______ ______
indication that jurors were aware of incident, court was
within its discretion in not drawing attention to it by
inquiring about incident), cert. denied, 474 U.S. 996 (1985).
____ ______
As such it clearly "falls within the wide range of reasonable
professional assistance" and thus precludes a finding of
ineffective assistance. Strickland v. Washington, 466 U.S.
__________ __________
668, 689 (1984).
Tracy also claims that his attorney failed to ask the
court to examine the jury because the attorney was himself
the source of the newspaper story and feared that, if the
issue were pursued, he would be discovered to have violated
District of Maine Local Rule 40(a)(4). This rule prohibits a
defense attorney from releasing information during trial "if
there is a reasonable likelihood that such dissemination will
seriously interfere with a fair trial." Tracy alleges that
the resulting conflict of interest between the attorney and
himself constitutes constitutionally ineffective assistance.
-3-
To show a conflict of interest, "a defendant must show
that (1) the lawyer could have pursued a plausible defense
strategy or tactic and (2) the alternative strategy or tactic
was inherently in conflict with or not undertaken due to the
attorney's other interests or loyalties." United States v.
_____________
Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994). Courts
_______________
have recognized that a conflict of interest may result when
pursuit of a client's interest would lead to evidence of
attorney malpractice. See United States v. Ellison, 798 F.2d
___ _____________ _______
1102, 1106-08 (7th Cir. 1986), cert. denied, 479 U.S. 1038
____ ______
(1987) (defendant had accused attorney of malpractice);
Mathis v. Hood, 937 F.2d 790, 795 (2d. Cir. 1991) (defendant
______ ____
had filed grievance with disciplinary committee). A showing
of an actual conflict of interest obviates the need to
demonstrate prejudice and constitutes a per se violation of
___ __
the Sixth Amendment. Soldevila-Lopez, 17 F.3d at 486-87.
_______________
Even if we credit Tracy's allegations, he has not made
the requisite showing that his attorney's failure to seek an
examination of the jury was due to other interests or
loyalties. First, Tracy has not explained how examining
whether or not the jury had been exposed to the articles
would have led to the further examination of who was the
source of the articles. Moreover, at the time the issue of
the articles arose, Tracy's attorney had not been accused of
any wrongdoing. This fact distinguishes Tracy's case from
-4-
both Ellison and Mathis. In the absence of any such
_______ ______
accusation of the attorney or other evidence of a per se
___ __
violation of the Sixth Amendment, the charge of conflict of
interest is simply too "speculative" to support an
ineffective assistance of counsel claim. See Soldevila-
___ __________
Lopez, 17 F.3d at 486-87.
_____
Affirmed. See 1st Cir. Loc. R. 27.1.
________ ___
-5-
