Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.peter A. Lebon, Petitioner, v. United States of America, Respondent, 72 F.3d 121 (1st Cir. 1995)

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US Court of Appeals for the First Circuit - 72 F.3d 121 (1st Cir. 1995) Dec. 13, 1995

Peter A. Lebon on brief pro se.

Donald K. Stern, United States Attorney, and Christopher Bator, Assistant U.S. Attorney, on brief for respondent.

Before SELYA, STAHL and LYNCH, Circuit Judges.


We have carefully reviewed the record and affirm the district court's dismissal of appellant's Sec. 2255 petition without an evidentiary hearing.

1. Counsel's failure to subpoena Tina Pina's telephone records was a permissible strategic decision which did not constitute ineffective assistance of counsel. That Tina had left in place a block preventing her from receiving appellant's calls would have undercut counsel's spurned woman strategy and would not have been particularly probative since the jury might instead have concluded that the apology calls occurred at a later time and that Tina had simply been mistaken about the date.

2. Any error in introducing the nature of the underlying felony conviction was harmless in view of Stefan Pina's testimony concerning defendant's access to guns and motive to possess one.

3. For the reasons stated in the district court's March 30, 1995 and May 23, 1995 opinions, appellant's claims of prosecutorial misconduct do not warrant habeas relief.