United States v. Terry ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-7918
RALPH LEON TERRY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Cameron McGowan Currie, District Judge.
(CR-98-1118; CA-02-57-5-22)
Argued: February 24, 2004
Decided: April 26, 2004
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge King and Judge Gregory joined.
COUNSEL
ARGUED: John Bottini, Third Year Law Student, Appellate Litiga-
tion Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Char-
lottesville, Virginia, for Appellant. Stacey Denise Haynes, Assistant
United States Attorney, Columbia, South Carolina, for Appellee. ON
BRIEF: Neal Lawrence Walters, Charlottesville, Virginia, for Appel-
lant. J. Strom Thurmond, Jr., United States Attorney, Columbia,
South Carolina, for Appellee.
2 UNITED STATES v. TERRY
OPINION
LUTTIG, Circuit Judge:
Appellant, Ralph Terry, was convicted by a jury of two federal
counts relating to cocaine distribution. His sentence was based, in
part, on the testimony of his co-conspirator, Eric Jensen, concerning
Terry’s involvement with him in a prior drug deal involving a large
quantity of marijuana, conduct that was not specified in Terry’s
indictment. Subsequently, Terry filed a motion pursuant to 28 U.S.C.
§ 2255 raising, inter alia, claims of ineffective assistance of counsel.
The claims were based on the asserted deficient performance of
Terry’s trial counsel in several respects, each deficiency of which
allegedly resulted in the omission of testimony that had a reasonable
probability of discrediting Jensen’s testimony about the marijuana
transaction, which in turn could have significantly reduced the sen-
tence Terry received. Terry sought to appeal the district court’s denial
of his motion to this court, and Judge Gregory granted a certificate of
appealability as to the ineffective assistance claims. Having fully con-
sidered these claims on their merits, we now affirm.
I.
In December of 1998, a federal grand jury charged Terry with one
count of conspiring with Eric Jensen to possess with intent to distrib-
ute cocaine, and one count of possession with intent to distribute and
distribution of a quantity of cocaine. At trial, the government called
five witnesses: Jensen (who pled guilty prior to trial), Richard Wil-
liamson, Terry Davis, and two agents of the South Carolina Law
Enforcement Department ("SLED"). The bulk of the government’s
evidence went to facts surrounding a cocaine transaction that occurred
on November 7, 1998, after Herbert ("The Breeze") Timmons, a con-
fidential informant, advised SLED agents of an imminent drug deal
near Columbia, South Carolina. Timmons was a friend of Williamson,
who knew Jensen. Williamson had told Timmons the previous day
that Jensen had powder cocaine for sale, and offered to assist Tim-
mons in an undercover drug operation. Williamson made plans to
bring Jensen up from Florida so that Jensen could sell the cocaine to
Timmons.
UNITED STATES v. TERRY 3
Williamson had identified "Ralph" as Jensen’s source for the
cocaine. "Ralph" planned to drive to Columbia to deliver the cocaine
to Jensen, which Jensen would then sell to Timmons. On the morning
of the day in question, Jensen met Ralph Terry at his girlfriend’s
house. There, Terry helped Jensen "cut" four ounces of cocaine into
seven, and then gave Jensen the powder, with the intention of being
repaid after its sale. Later that day, Timmons met Williamson and
Terry to discuss a deal. At that meeting, Jensen agreed to sell Tim-
mons four ounces of cocaine, and Jensen was arrested. Jensen quickly
agreed to cooperate and identified Terry as his drug source. The
agents had Jensen make a recorded call to Terry, in which Jensen told
Terry he had part of his money and could pick it up at the hotel. Terry
came to the hotel, and was arrested shortly after he arrived there.
In establishing the extent of the relationship between Jensen and
Terry, the government also presented evidence of their prior conduct
together. Jensen testified that he met Terry while they were both in
prison. After their release, Terry pressured Jensen to start dealing
drugs again, and Jensen eventually agreed. The two engaged in an ini-
tial transaction involving fifteen or twenty pounds of marijuana,
which Terry supplied to Jensen. Subsequently, a larger transaction
occurred in which Terry delivered a car with marijuana in its trunk
to Jensen, which Jensen was to take to one Rodney Mayo. When he
brought the car to Mayo and the trunk was opened, Jensen discovered
approximately 100 pounds of marijuana inside. Jensen gave the drugs
to Mayo and returned the car to Terry.
As to the case in defense, Terry’s appointed trial counsel presented
Terry’s girlfriend, as an alibi witness whose testimony cast doubt on
Jensen’s description of his activities with Terry that morning. Addi-
tionally, trial counsel cross-examined each of the prosecution’s wit-
nesses, often at some length. Nevertheless, the jury convicted Terry
of both counts.
A presentence report was submitted to the court. The report recom-
mended inclusion of the 100 pounds of marijuana that Jensen deliv-
ered for Terry, as relevant conduct for determining Terry’s sentence.
The district court adopted the report’s findings and sentenced Terry
to 97 month sentences on each count, with the sentences set to run
concurrently. On direct appeal, this court affirmed Terry’s convic-
4 UNITED STATES v. TERRY
tions. United States v. Terry, 14 Fed. Appx. 253 (4th Cir. 2001)
(unpublished).
Subsequently, Terry filed a pro se motion under 28 U.S.C. § 2255,
in which he asserted several claims. Without holding an evidentiary
hearing, the district court denied relief on all claims, denied Terry’s
subsequent motion for reconsideration only as to his ineffective assis-
tance of counsel claims, and denied a certificate of appealability.
Terry timely sought appeal to this circuit, however, and Judge Greg-
ory granted a certificate "on the issues of whether counsel was inef-
fective for advising Terry not to testify and for failing to call
witnesses who Mr. Terry alleged were prepared to testify." We
appointed Terry appellate counsel, directed additional briefing, and
heard argument.
II.
In order to establish a claim for ineffective assistance of counsel,
Terry must show, first, that his trial counsel’s performance was defi-
cient and, second, that the deficiency prejudiced Terry’s defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strick-
land’s "performance" prong, Terry must demonstrate that trial coun-
sel’s performance fell below an objective standard of reasonableness
determined by comparison to "prevailing professional norms." Id. at
688. In addition, Terry must also show under Strickland’s "prejudice"
prong that "there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different." Id. at 694. If Terry conclusively fails to demonstrate suffi-
cient prejudice from certain acts or omissions, we need not decide
whether counsel’s performance in those regards was, in fact, deficient
under Strickland. See id.
Terry claims that his trial counsel provided ineffective assistance
of counsel in three ways, two of which are based on trial counsel’s
advice to Terry not to testify, and the other of which stems from trial
counsel’s failure to call as witnesses three inmates whom Terry
alleges were prepared to testify. Moreover, even if the court cannot
accept those claims on the record as it now stands, Terry asserts that
the case must be remanded for an evidentiary hearing as he contends
section 2255 requires. We conclude, however, that even if Terry’s
UNITED STATES v. TERRY 5
evidence was believed, it would not establish ineffective assistance.
Thus, an evidentiary hearing is unnecessary and, accordingly, we
affirm the district court’s rejection of Terry’s claims on the record
evidence.
III.
While Terry makes three general claims of ineffective assistance,
the locus of the first two lies in Terry’s not testifying due to trial
counsel’s performance. First, Terry claims that trial counsel’s deci-
sion to advise him not to testify on his own behalf (which he eventu-
ally followed) was unreasonable in view of the exculpatory testimony
he would have provided and given that counsel’s "stated tactical rea-
son" for so recommending — avoiding opening the door to Terry’s
past convictions — was insufficient, since the existence of those con-
victions had already come out by the end of the government’s case-in-
chief. This unreasonableness was, Terry contends, further com-
pounded by the fact that trial counsel had promised the jury in his
opening statement that Terry would testify to explain a prior mari-
juana conviction. Second, even if we conclude that trial counsel’s rec-
ommendation not to testify was reasonable, Terry claims that
counsel’s performance was nevertheless deficient because he incom-
pletely or inaccurately informed Terry of the negative consequences
of his decision not to testify, in contravention of counsel’s obligation
to assure that Terry’s waiver of that right was intelligent, voluntary,
and knowing.
We think it unlikely that trial counsel’s performance in these
regards was constitutionally deficient, especially given the deference
we accord the delicate balancing involved in any attorney’s decision
to advise his client whether to take the stand in his own defense. But
since it is so clear that counsel’s purported deficiencies did not preju-
dice Terry, we need not analyze the sufficiency of counsel’s perfor-
mance as to these first two claims in detail.
A.
Before analyzing these first claims for prejudice, we must examine
the manner in which Terry has alleged the "result of the proceeding"
was affected by trial counsel’s allegedly deficient performance. We
6 UNITED STATES v. TERRY
note that Terry’s ineffective assistance claims are all premised on his
assertion that, as a drug conspiracy defendant, he faced the significant
possibility of being sentenced for drug amounts not specified in his
indictment, so it was "imperative" that trial counsel contest evidence
of such drug amounts. Here, Jensen was the sole witness to Terry’s
involvement with the 100 pounds of marijuana used as relevant con-
duct in determining his sentence. Absent the district court’s crediting
of Jensen’s testimony, Terry claims that his guideline range on each
count would have been 33-41 months — less than half of the 97
months he received. According to Terry, trial counsel had two readily
available means of attacking Jensen’s credibility — through Terry’s
testimony and that of the three other witnesses that Terry identified
— but counsel’s ineffective assistance prevented the presentation of
this testimony.
Notably, however, this discussion of Terry’s grievance shows the
limited scope of his prejudice claim. Terry has, for example, no evi-
dence that the testimony that he would have provided as to the mari-
juana transaction and Jensen’s credibility could have reasonably
placed any doubt in the jury’s mind as to his guilt for the charged
crimes relating to cocaine distribution. Instead, the only "result of the
proceeding" for which Terry can plausibly establish prejudice is the
sentence he received. We have confined our prejudice analysis
accordingly.
B.
We now turn to the issue of whether trial counsel’s performance
with respect to Terry’s testifying had a reasonable probability of
affecting Terry’s sentence. In this context, Terry’s claim requires, as
a threshold matter, there to be a reasonable probability that if Terry
had testified, the district court would not have accepted, for sentenc-
ing purposes, either the very existence, or the full amount, of the mar-
ijuana Jensen claimed was involved in their earlier dealings.
Of course, this contention is most directly examined by comparison
of Jensen’s testimony as it stood at trial with Terry’s case in defense,
as buttressed by the testimony he allegedly would have provided. As
to the former, Jensen’s account of the prior marijuana transaction
used in sentencing Terry was specific and detailed. In contrast, Terry
UNITED STATES v. TERRY 7
provides no concrete evidence of what he would have testified to in
exculpation. He says only that he would have denied Jensen’s claim
and impeached Jensen’s credibility, but omits any details that explain
why the district court would have given his claims any weight. His
conclusory allegations are insufficient to establish the requisite preju-
dice under Strickland.*
The weakness of Terry’s possible testimony is only compounded
by the district court’s finding that Jensen’s testimony was extremely
credible. In particular, the court observed during the sentencing hear-
ing that "[t]here was no doubt in my mind as to the credibility of Mr.
Jensen at the trial. He was one of the more credible witnesses that I
have observed testify." J.A. 579 (emphasis added). So notwithstand-
ing that Jensen was the primary source of evidence for the marijuana
deal, the record evidence indicates that there is little chance that
Terry’s testimony (even combined with that of the witnesses dis-
cussed below) would have been credited at sentencing over Jensen’s.
Moreover, we must determine the prejudice of omitted testimony
not simply by analysis in a vacuum of its likely effect on the evidence
that was actually adduced but, rather, with respect to the relevant bur-
den and standard of proof. As such, we can confidently say in this
case that even in the unlikely event that Terry’s testimony introduced
some doubt in the district court’s mind as to the accuracy of Jensen’s
testimony, Terry’s claims would still fail. Since the government only
needed to establish the amount of marijuana attributable as relevant
conduct by a preponderance of the evidence, there would be, even
then, no reasonable probability that Terry’s sentence would actually
have changed. In sum, even if counsel’s performance with respect to
Terry’s testifying was constitutionally deficient, we cannot conclude
that this deficiency had a prejudicial effect on his sentence.
*Cf. Anderson v. Johnson, 338 F.3d 382, 393 (5th Cir. 2003) (assess-
ing prejudice by weighing state’s case as it was presented against the
defense’s case had counsel called the witness at issue, and finding suffi-
cient prejudice under Strickland when the omitted witness’ testimony
would have been a "powerful rebuttal" to the state’s "relatively weak
case") (internal quotation marks omitted).
8 UNITED STATES v. TERRY
IV.
We next address Terry’s ineffective assistance claim based on trial
counsel’s decision not to call as witnesses three inmates who alleg-
edly could have offered exculpatory testimony on Terry’s behalf.
Counsel averred that he did not call the inmates because he thought
that calling a lone, alibi witness (Terry’s girlfriend) was "the best
defense we had available," and he did not "feel [the three inmate wit-
nesses] would have made much difference [since] these were all peo-
ple from the jail." J.A. 769. According to Terry, however, "each of
these three proposed witnesses would have offered testimony that
would have directly attacked the evidence [provided by Jensen and
Davis] of any prior drug dealings by Mr. Terry." Br. of Appellant at
41-42. Terry claims that the fact that these witnesses were inmates
was not a "cogent tactical . . . consideration," Washington v. Murray,
952 F.2d 1472, 1476 (4th Cir. 1991), sufficient to justify counsel’s
failure to present the exculpatory evidence that the witnesses could
have provided.
While we cannot manufacture excuses for counsel’s decision that
he plainly did not and could not have made, see Griffin v. Warden,
Md. Corr. Adjustment Ctr., 970 F.2d 1355, 1358 (4th Cir. 1992), nei-
ther must we, as Terry seems to suggest, confine our examination of
the reasonableness of trial counsel’s decision to only the literal word-
ing of his explanation. Rather, we evaluate the reasonableness of
counsel’s explanation for not calling these witnesses in light of "the
circumstances of counsel’s challenged conduct, and . . . from coun-
sel’s perspective at the time." Strickland, 466 U.S. at 689. In so doing,
we "must indulge a strong presumption . . . that, under the circum-
stances, the challenged action might be considered sound trial strat-
egy." Id. (internal quotation marks omitted). The difficulty of
overcoming that general presumption is even greater in this case,
given that "the decision whether to call a defense witness is a strategic
decision" demanding the assessment and balancing of perceived bene-
fits against perceived risks, and one to which "[w]e must afford . . .
enormous deference." United States v. Kozinski, 16 F.3d 795, 813
(7th Cir. 1994) (internal quotation marks omitted). See also Byram v.
Ozmint, 339 F.3d 203, 209 (4th Cir. 2003), cert. denied, 2004 WL
547249 (U.S. Mar. 22, 2004).
UNITED STATES v. TERRY 9
After reviewing the record evidence, we conclude that trial coun-
sel’s performance in this regard could not be considered constitution-
ally deficient. In particular, it certainly was not "below the wide range
of professionally competent performance," Griffin, 970 F.2d at 1357,
for counsel to have concluded that these inmates would not improve
the case in defense that he presented by calling only Terry’s girl-
friend, given the circumstances of his representation of Terry and the
potential effect of the inmates’ testimony. For one, trial counsel’s
explanation that those witnesses would not help because they were
inmates must be reviewed in the context of how trial counsel would
have perceived Terry’s decision to reject a favorable plea agreement
and go to trial. See Strickland, 466 U.S. at 691 ("The reasonableness
of counsel’s actions may be determined or substantially influenced by
the defendant’s own statements or actions."). More specifically, the
evidence shows that Terry rejected a plea agreement that would have
achieved a result similar to that he now claims that the three inmates’
testimony would have had (e.g., the exclusion of the marijuana trans-
action from the calculation of his sentence). See J.A. 773. Instead, he
chose to risk the vagaries of trial by jury. In light of that decision, it
would have been eminently reasonable for trial counsel to conclude
that Terry desired acquittal even at the risk of a higher sentence if he
was convicted, and from that to believe that Terry’s "best defense"
was one that, although leaving unchallenged relevant evidence for
sentencing, increased the likelihood of Terry’s acquittal.
To be sure, trial counsel’s explanation is not ideal in its specificity.
But Terry is simply wrong to say that this explanation was an insuffi-
ciently cogent justification on the argument that there was "nothing
to lose by introducing these witnesses" since the worst that could hap-
pen from their testifying was that "the court could not have found
them credible." Br. of Appellant at 44. In fact, not only could the
court not have found these witnesses credible for purposes of sentenc-
ing, but the jury could have decided that their testimony actually
weakened the defense’s case against conviction. And more important
for our purposes is that, unlike what was the case in Griffin, these wit-
nesses would have provided no "evidence which in a significant way
drew [Terry’s] factual guilt in issue," 970 F.2d at 1357, a case in
which trial counsel’s decision not to call a witness must be more
closely scrutinized. Rather, counsel here would have been well within
acceptable professional standards if he decided that having convicted
10 UNITED STATES v. TERRY
criminals testify on Terry’s behalf to challenge the evidence of prior
drug dealings would do nothing on balance to help Terry’s chances
for acquittal of the charges for which he was actually being tried.m
m
A fundamental reality of trial practice is that "[o]ften, a weak wit-
ness or argument is not merely useless but, worse than that, may
detract from the strength of the case by distracting from stronger
arguments and focusing attention on weaknesses." Epsom v. Hall, 330
F.3d 49, 53 (1st Cir. 2003). Counsel could reasonably have concluded
the same as to the testimony that these inmates allegedly would have
provided about the jailhouse accusations and contradictions of the
inmates that the government chose to call. Put differently, trial coun-
sel’s reference to the fact that "these were all people from the jail" can
be fairly understood, under the circumstances, to reference more than
just the possibility that these witnesses’ convictions alone would be
used to detract from their credibility. It also could reference the lack
of evidence that any of these men knew Terry prior to his arrest for
the charged crimes, making it unlikely they could provide substantial
aid in trial counsel’s preeminent goal of creating reasonable doubt as
to the validity of those charges. This is especially true given that trial
counsel had already attacked, to his satisfaction, the credibility of the
government’s witnesses on cross-examination and by calling Terry’s
girlfriend.
Thus, with trial counsel having presented a defense that he believed
was the "best . . . we had available" and that was, from our review
of the record, sufficient to allow a jury to acquit, trial counsel could
have reasonably believed that the potential benefit of allowing these
convicts to rebut Jensen’s sentencing evidence was insubstantial
because it did not outweigh the potential detriment of their weakening
the case for acquittal. At minimum, the evidence is insufficient to
overcome the strong presumption that this decision was sound trial
strategy.
CONCLUSION
For these reasons, the judgment of the district court is affirmed.
AFFIRMED