00-2970 Alan Grecco v. UNITED STATES OF AMERICA Appeal from the United States District Court For the…

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 00-1861, 00-2970
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ALAN GRECCO,
Appellant
v.
UNITED STATES OF AMERICA
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Appeal from the United States District Court
For the District of New Jersey
D.C. No.: 97-cv-2098
District Judge: Honorable Harold A. Ackerman
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(Argued: January 17, 2002)
Before: SCIRICA, ROSENN, Circuit Judges, and KANE, District Judge.
(Filed: January 31, 2002)
Lawrence S. Lustberg, Esq. (Argued)
Thomas R. Valen, Esq.
Philip James Degnan, Esq.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
A Professional Corporation
One Riverfront Plaza
Newark, NJ 07102
Counsel for Appellant
Robert J. Cleary, U.S. Attorney
George S. Leone, Chief, Appeals Division
Maureen A. Ruane, Assistant U.S. Attorney (Argued)
970 Broad Street
Newark, NJ 07102
Counsel for Appellee
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OPINION
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PER CURIAM
This appeal involves whether Appellant Alan Grecco was denied effective
assistance of counsel because his trial counsels failed to inform him of his right to testify
in his own defense. We must also determine whether the District Court erred in not
conducting an evidentiary hearing before denying any relief. Because the parties are
intimately familiar with the case, and this case has been before this Court twice before,
once on an interlocutory appeal, United States v. Gatto, 924 F.2d 491 (3d Cir. 1991), and
then, on direct appeal, United States v. Gatto, 995 F.2d 449 (3d Cir. 1993), we recite
herein only the very essential facts.

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In June 1991, Grecco was found guilty by a jury for the murder of Vincent
Mistretta. Unsuccessful in his direct appeal, he filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. 2255 alleging that he was denied effective
assistance of counsel because his trial counsels failed to advise him of his right to testify.
Without an evidentiary hearing, the District Court on April 17, 2000, denied the motion in
its entirety. Then, Grecco supplemented his prior affidavit that the District Court had
found lacking in specificity, and requested relief from the April 17th judgment pursuant
to Rule 60. On August 4, 2000, the District Court denied that motion finding that nothing
in the supplemental affidavit alters its prior decision.
He appealed from both the denial of his 2255 petition and Rule 60 motion, and
on March 23, 2001, this Court consolidated those two appeals and granted a certificate of
appealability under 28 U.S.C. 2253, "limited to the issue of whether trial counsel
provided ineffective assistance in failing to advise Grecco fully as to his right to testify."
Grecco urges that his trial counsels were ineffective because they failed to inform him
that the ultimate decision as to whether to or not testify was his to make and that this
failure was "outside the range of professionally competent assistance" and that it was
prejudicial because "the addition of his testimony to the defense case would have altered
the outcome of his trial."
After carefully reviewing the District Court decision that accompanied both the
April 17th and August 4, 2000, orders, briefs of Grecco and the government before this
Court, the record including Grecco’s supplemental affidavit submitted with the Rule 60
motion, and the oral arguments before this Court on January 17, 2002, we are convinced
that Grecco has failed to show that he was denied effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668 (1984). Grecco has proffered no persuasive
arguments for us to disturb the District Court judgment. We rely substantially on the
thoughtful and persuasive opinion of the District Court.
At a minimum, Grecco contends that he was entitled to an evidentiary hearing.
He argues that "it is clear that Grecco presented a prima facie case of ineffective
assistance of counsel under the Strickland test and the district court should have
conducted an evidentiary hearing to create a complete record concerning the issue." To
be sure, 28 U.S.C. 2255 states that the District Court shall grant a hearing unless the
record "conclusively show that the prisoner is entitled to no relief." Again, we are in
agreement with the District Court "that each portion of [Grecco’s] 2255 motion fails
conclusively with respect to one or both prongs of the Strickland analysis." Grecco’s
arguments for an evidentiary hearing to develop a factual record is focused singularly on
the Strickland performance prong and silent on the Strickland prejudice prong. See, e.g.,
United States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988) ("If a nonfrivolous claim
clearly fails to demonstrate either deficiency of counsel’s performance or prejudice to the
defendant, then the claim does not merit a hearing.").
Lastly, we note that Grecco had also raised several other grounds of ineffective
assistance of counsel, and sentencing related claims, but the District Court had likewise
denied relief. Notwithstanding the clear language in this Court’s March 23, 2001, order
granting the limited certificate of appealability, Grecco claims that the certificate was too
limited. He argues that this panel should reconsider the decision of the certificate of
appealability panel. Putting aside this panel’s lack of authority to disturb a decision of
another panel, Grecco does little besides incorporate by reference the arguments raised in
his memorandum of law before the certificate of appealability panel. If appellant is
dissatisfied with the decision of a prior panel, then his recourse, as with any other
decision, is to petition for panel rehearing, and not to seek review collaterally.
The orders of the District Court are affirmed.

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