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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-20443

UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JUAN RIVERA MARTINEZ
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

July 15, 1999
Before POLITZ, HIGGINBOTHAM, and DAVIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
A federal jury convicted Juan Rivera Martinez of conspiracy to
possess more than five kilograms of cocaine with the intent to
distribute it. The district court sentenced him to a 360-month
term of imprisonment. On direct appeal, this court rejected
Martinez's challenge to the sufficiency of the evidence. Martinez
then moved the district court to vacate judgment pursuant to 28
U.S.C. § 2255. The court summarily denied Martinez's motion and
his petition for a certificate of appealability. This court
granted a certificate of appealability on the issue of whether
Martinez had been denied his right to testify on his own behalf and
counsel's alleged ineffectiveness related thereto. We VACATE and

REMAND to allow Martinez an opportunity to state his claims with
greater specificity.
In his § 2255 motion, Martinez alleged that he "was denied
effective counsel, when counsel failed to call him to testify at
trial." Martinez went on to claim that "he told his counsel, that
he wanted to testify in his own behalf. . . . [b]ut, because of
counsels, [sic] his side of the story was never admitted into the
record and heard by the jury or Court . . . ." Martinez's motion
presents an ineffective assistance claim based on his lawyer's not
calling him to testify at trial and implicates the right to testify
because Martinez essentially argues that he was deprived of this
right when counsel did not call him to the stand.
Section 2255 requires that the district court conduct a
hearing on a petitioner's allegations "[u]nless the motion and the
files and records of the case conclusively show that the prisoner
is entitled to no relief." Martinez's ineffective-assistance
claim, though at bottom presenting a potentially valid claim for
relief, does not specify the grounds for his allegation other than
to say that his side of the story was not told at trial. This
loose assertion, while perhaps not "conclusively" disproved by the
record in the case, does not tell the court enough about what
happened to Martinez and how his counsel was ineffective. Further
explanation is necessary before the court can begin to fully
address the merits of the claim.
2

The backdrop to Martinez's ineffective assistance allegation
is his right to testify: Martinez states that he told his lawyer
that he wanted to testify in his own behalf, but his attorney did
not call him to the stand. A criminal defendant has a
constitutional right to testify in his own behalf, and this right
is granted to the defendant personally and not to his counsel. See
Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). This circuit has not
yet decided the full reach of a criminal defendant's right to
testify or what degree of substantiation is required in a § 2255
right-to-testify claim to trigger a hearing. In this case, there
is no hint of more than Martinez's counsel's view that Martinez
ought not testify -- no suggestion of force or coercion -- and that
Martinez simply followed the advice of counsel or acquiesced in
counsel's strategic trial decision.
Courts have observed that allowing a bare assertion of a
right-to-testify violation to precipitate the further investment of
judicial resources is problematic. See Underwood v. Clark, 939
F.2d 473, 476 (7th Cir. 1991)(stating that a conclusory assertion
by a defendant that his right to testify was denied him is
insufficient to require a hearing because "[i]t just is too facile
a tactic to be allowed to succeed"). We agree that there is "a
grave practical difficulty in establishing a mechanism that will
protect a criminal defendant's personal right . . . to testify in
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his own behalf without rendering the criminal process unworkable."
Id. at 475.
Therefore, though we are mindful both of the judiciary's
obligation to provide the accused with an adequate mechanism to
fairly address his claims and of our heavy indulgence of pleadings
by prisoners without counsel, we do not think that Martinez's vague
and conclusory assertion alone should be allowed to trigger a
hearing or response from the government. At the same time, in
keeping with the strictures of § 2255, we do not think summary
dismissal was appropriate here. Rather, before additional judicial
resources are allocated to this case, Martinez must add some detail
to his ineffective-assistance and right-to-testify allegations.
Martinez's statement, read with a generous spirit, complains of his
lawyer's ineffectiveness in not developing his side of the story,
including calling him to the stand; it says nothing about how
counsel was ineffective or the circumstances surrounding Martinez's
failure to take the stand at his trial. We vacate and remand so
that Martinez can state with greater specificity his complaints
regarding ineffective assistance and his right to testify. If he
is unable to provide more than his present conclusory statement,
summary dismissal of his petition will be appropriate.
VACATED and REMANDED.
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