United States v. Byron McDade , 699 F.3d 499 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2012 Decided November 9, 2012
No. 09-3094
UNITED STATES OF AMERICA,
APPELLEE
v.
BYRON LAMONT MCDADE, ALSO KNOWN AS BARRY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:00-cr-00105-4)
Robert S. Becker, appointed by the court, argued the cause
and filed the briefs for appellant.
James A. Petkun, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen, Jr.,
U.S. Attorney, and Roy W. McLeese III, John P. Mannarino, and
John P. Dominguez, Assistant U.S. Attorneys. Elizabeth
Trosman, Assistant U.S. Attorney, entered an appearance.
Before: ROGERS, BROWN and KAVANAUGH, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
2
ROGERS, Circuit Judge: Upon failing on direct appeal to
obtain reversal of his conviction by a jury of one count of
conspiracy to distribute five kilograms or more of cocaine and
aiding and abetting, Byron L. McDade filed a motion
challenging his sentence pursuant to 28 U.S.C. § 2255. The
motion was filed within the one-year limitation of § 2255(f), but
did not include his claim of ineffective assistance of trial
counsel. The government therefore maintains this later-filed
claim is not properly before the court. Guided by Holland v.
Florida, – U.S. –, 130 S. Ct. 2549 (2010), interpreting 28 U.S.C.
§ 2244, we join our sister circuits in holding that equitable
tolling applies to § 2255 motions. Here, the later-filed claim is
properly before the court because McDade was diligent in
researching his claim and post-conviction counsel1
acknowledged that the failure to include the ineffective
assistance claim in the timely § 2255 motion was due solely to
his own error. On the merits, however, we conclude that
McDade has failed to meet his burden under Strickland v.
Washington, 466 U.S. 668 (1984), to show that he was denied
his Sixth Amendment right to the effective assistance of trial
counsel. Whether or not trial counsel’s decision not to interview
potential impeachment witnesses was objectively reasonable,
any failures were not prejudicial because there is no reasonable
probability that the outcome of the trial would have been
different absent the errors. Accordingly, we affirm.
I.
A grand jury issued a superceding indictment on August 9,
2001, charging McDade with one count of conspiracy to
distribute five kilograms or more of cocaine in violation of 21
U.S.C. § 846. A jury found him guilty after a 10-day trial. The
1
McDade is represented by new counsel on appeal.
3
district court sentenced him, in accord with the then mandatory
Sentencing Guidelines, to 324 months’ imprisonment.2
The government’s evidence at trial consisted primarily of
testimony from McDade’s cocaine supplier, individuals who
purchased cocaine from McDade, and minimal wire tap
evidence of conversations between McDade and his alleged
cocaine supplier, Phyllis Webster. The evidence included
testimony that Webster received cocaine from Cornelius
Singleton and that McDade in turn sold this cocaine for Webster
beginning in 1998. Webster testified that in 1998 she chose
McDade to take over her cocaine distribution and that she also
provided him with cocaine at a discounted rate to distribute to
his own customers. Ernest Minder testified that McDade
received his cocaine from Webster and sold cocaine to Minder
and others. The taped telephone conversations between Webster
and McDade tended to corroborate Webster’s testimony, for
example that McDade kept the records of his drug sales on the
backs of lottery tickets. Because Webster and McDade spoke in
code, however, the tapes did not identify the kind of cooperative
endeavor in which they were engaged. The government also
presented evidence that McDade had fled when his employer
told him that an FBI agent wanted to speak with him, and later
hung up when the FBI contacted him by phone; McDade turned
himself in seven months later.
McDade presented no witnesses and did not testify himself.
Instead, he relied on cross-examination of the government’s
witnesses, which elicited incriminating statements, including
admissions that they had violated the conditions of their
2
At sentencing the district court observed that McDade’s
sentence under the mandatory Sentencing Guidelines was “much more
than sufficiently punitive.” Judgment June 3, 2002 at 6.
4
probation or their cooperation agreements with law enforcement
and were testifying with the expectation of receiving reduced
sentences.
This court affirmed McDade’s direct appeal of his
conviction, see United States v. McDade, No. 02-3054, 2003
WL 22204126 (D.C. Cir. Sept. 16, 2003), rejecting his
contentions that there was insufficient evidence to show a single
conspiracy, that there was reversible error as a result of the
prosecutor’s rebuttal closing argument, and that in sentencing
the district court erred in finding that he was a manager or
supervisor pursuant to § 3B1.1 of the Sentencing Guidelines.
The Supreme Court denied his petition for a writ of certiorari on
March 8, 2004. See McDade v. United States, 541 U.S. 911.
On March 7, 2005, McDade, through new counsel, filed a
“motion to vacate, set aside, or correct the sentence” pursuant to
28 U.S.C. § 2255. Despite McDade’s requests to counsel that
the motion include a claim of ineffective assistance of trial
counsel for failure to interview potential impeachment
witnesses, counsel inadvertently omitted this claim. On April 8,
2005, after the § 2255 limitation period had run, counsel filed an
amended motion along with a supporting memorandum and
affidavits. The district court denied McDade’s § 2255 motion
with regard to two claims not relevant to this appeal, and
ordered supplemental briefing with regard to the timeliness of
his ineffective assistance of trial counsel claim. Despite the
government’s objection that this claim was time-barred, the
district court stated that it was “loathe to dispose of [McDade’s]
claim of ineffective assistance of trial counsel on [the
timeliness] basis alone when [McDade] is serving a very lengthy
sentence (324 months) and when his amended motion, if indeed
it was untimely, was no more than a month late.” United States
v. McDade, No. cr-00-0105, No. cv-05-0555, at *8 (D.D.C. Jan.
5, 2006).
5
At an evidentiary hearing on January 15, 2008, the district
court heard from McDade, his trial counsel, and one of the
potential impeachment witnesses, Kent Sebastian Robinson,
who McDade argued his trial counsel had unreasonably failed to
interview in preparing for trial. McDade testified about the
information he had given to trial counsel regarding three
impeachment witnesses, and trial counsel testified as to his
theory of the case, his trial strategy, and his reasons for not
calling or interviewing Rodney Douglas, David Flowers, and
Robinson as potential impeachment witnesses. In a February
28, 2005 affidavit accompanying McDade’s amended § 2255
motion, Flowers stated that he encountered Ernest Minder while
Minder was in protective custody, and that Minder had told him
that the government wanted Minder to testify against McDade,
but that Minder did not know McDade. Douglas, in his affidavit
of November 2, 2004, stated that Minder had also told Douglas
that he “did not know [McDade] like that.” Because McDade
knew Minder and it would be easy to “explain away” Minder’s
statement denying in essence that he was cooperating with the
government, trial counsel explained that he had determined that
the testimony of Douglas would not be helpful. See United
States v. McDade, 639 F. Supp. 2d 77, 83 (D.D.C. 2009). He
had no recollection or notation of any conversations about
Flowers.
Robinson testified that although he could have offered
testimony during McDade’s trial that contradicted the testimony
of Phyllis Webster that Robinson had introduced her to McDade,
he probably would have invoked his Fifth Amendment privilege
against self-incrimination with regard to all other questions.
McDade testified that Robinson would have refuted Webster’s
testimony that she had sold drugs to McDade by way of
Robinson. Trial counsel testified that he had no recollection
McDade had told him this, and that he would have remembered
this if he had; trial counsel’s pre-trial notes indicated that
6
McDade did not want to call Robinson as a witness, and he had
no recollection McDade had changed his mind during trial.
Trial counsel proceeded to explain that, based on his
conversations with McDade and the prosecutor, who wanted
McDade to testify against Robinson, he had concluded that
calling Robinson as a defense witness, whom counsel suspected
the government could prove was a drug dealer and had evidence
to impeach any testimony he might offer, would involve risks to
McDade that outweighed the potential impeachment value of his
testimony. See id. at 84. As the district court recounted, his trial
strategy was to “show at trial that all of the government’s
witnesses were ‘criminals’ and ‘scoundrels’ who have had a
history of ‘possessing weapons’ and dealing drugs and were
testifying against the defendant only because they had ‘cut deals
seeking reduced sentences,’” Id. at 82, whereas McDade was “a
hard working man” with a “wife” and “three children” who had
a “contract with Medicaid . . . transport[ing] elderly, sick and
mentally handicapped people to hospitals” and worked as a trash
collector for “Waste Management,” Tr. Feb. 4, 2002 at 597.
Calling Robinson might open up “a whole new dimension,” Tr.
Jan. 15, 2008 at 62, emphasizing McDade’s relationship with
Robinson, and so undermine the theory of the case he was
presenting to the jury while not providing “anything that would
have been particularly substantial.” Id. at 63.
The district court denied McDade’s § 2255 motion, finding
that trial counsel’s decision not to call Douglas, Flowers, and
Robinson as impeachment witnesses was “not objectively
unreasonable, nor was the decision not to interview Douglas and
Flowers.” McDade, 639 F. Supp. at 82. In view of McDade’s
assertions as to Robinson’s potential testimony, however, the
district court concluded it was “objectively unreasonable” for
trial counsel “not to interview Robinson,” id. at 82 (emphasis in
original), before deciding whether to call him as a witness.
Nevertheless, the district court found that McDade had failed to
7
show prejudice under the second prong of Strickland’s
ineffective assistance of counsel test because trial counsel’s
failure to interview Robinson “did not prejudice the outcome of
the trial,” id. at 85, and therefore McDade’s ineffective
assistance of counsel claim was without merit. The district court
considered Robinson’s criminal record, the minimal effect his
testimony could have had on Webster’s credibility, and the
“dubious proposition” that it would even have permitted
Robinson to testify given his statements that he would have
asserted his Fifth Amendment privilege with regard to all but
one question. Id. at 84–85. Because the district court resolved
the motion on the question of prejudice, it declined to analyze
whether the ineffective assistance of trial counsel claim was
time-barred.3
II.
On appeal, McDade contends that the district court’s
conclusion that trial counsel made an objectively reasonable
decision not to interview Douglas and Flowers was based on
assumptions about the value of their testimony that are
unsupported in the record. Trial counsel’s failure to interview
Douglas and Flowers, he maintains, was as objectively
unreasonable as counsel’s decision not to interview Robinson.
In McDade’s view, a proper evaluation of the potential
testimony of these witnesses makes evident that but for
counsel’s error there is a reasonable probability of a different
result at trial. The government disagrees, maintaining McDade
3
Additionally, in denying the § 2255 motion the district court
stated that McDade’s sentence was “disproportionate,” recommended
that the Director of the Federal Bureau of Prisons reduce his sentence,
and urged the President to “consider executive clemency for Mr.
McDade” and “reduce [his] sentence to fifteen years in prison
followed by a substituted term of supervised release.” Id. at 86.
8
fails to meet his burden at each prong of the Strickland test
because trial counsel made a reasonable tactical decision after
considering the information provided by McDade and by the
government not to investigate or call the potential impeachment
witnesses, and, in any event, McDade has failed to show any
prejudice from trial counsel’s purported deficiency. As a
threshold matter, however, the government renewed its
objection that the § 2255 claim of ineffective assistance of
counsel was untimely filed and is thus not properly before the
court. We address that question first.
A.
28 U.S.C. § 2255(f) sets a one-year limitation for filing a
motion pursuant to this section and establishes that the limitation
will run from the latest of four enumerated circumstances.
Unlike all of our sister circuits, this court has yet to decide
whether equitable tolling applies to a motion filed pursuant to
§ 2255.4 In United States v. Cicero, 214 F.3d 199, 203 (D.C.
Cir. 2000), the court implied that equitable tolling under § 2255
would be available only in “extraordinary circumstance.” Since
then the Supreme Court has held that equitable tolling applies to
the time limitation in 28 U.S.C. § 2244, a nearly identical
4
See Ramos-Martinez v. United States, 638 F.3d 315, 318 (1st
Cir. 2011); Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001);
Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 619 n.1
(3d Cir. 1998); United States v. Prescott, 221 F.3d 686, 688 (4th Cir.
2000); United States v. Petty, 530 F.3d 361, 364 (5th Cir. 2008);
Solomon v. United States, 467 F.3d 928, 929 (6th Cir. 2006); United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000); Moore v.
United States, 173 F.3d 1131, 1134 (8th Cir. 1999); United States v.
Buckles, 647 F. 3d 883, 889 (9th Cir. 2011); United States v.
Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008); Sandvik v. United
States, 177 F.3d 1269, 1271–72 (11th Cir. 1999) (per curiam).
9
provision. See Holland, – U.S. –, 130 S. Ct. at 2560. Sections
2244 and 2255 were enacted as part of the Anti-terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, §§ 101, 105, 110 Stat. 1214, 1217, 1220 (1996), and
the text of both sections is similar. Compare 28 U.S.C.
§ 2244(d), with 28 U.S.C. § 2255(f).5
In Holland, the Court held that the limitations period in
§ 2244(d) was not jurisdictional and reaffirmed that a non-
jurisdictional federal statute of limitations is “normally subject
to a rebuttable presumption in favor of equitable tolling.” 130
S. Ct. at 2560 (quoting Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 95–96 (1990)) (emphasis in original) (internal
quotations omitted). The Court noted that equitable principles
have traditionally governed the substantive law of habeas
corpus. Id. (citing Munaf v. Geren, 553 U.S. 674, 693 (2008)).
The Court also noted that “[t]he presumption’s strength is yet
further reinforced by the fact that Congress enacted AEDPA
after this Court decided Irwin and therefore was likely aware
that courts, when interpreting AEDPA’s timing provisions,
would apply the presumption.” Id. at 2561. Further, the Court
distinguished the text in AEDPA’s limitation provision from
other statutes in which the presumption had been overcome by
the use of more emphatic and highly detailed and technical
5
Section 2244(d)(1) provides: “A 1-year period of limitation
shall apply to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.” It proceeds to
define when the limitation period starts to run. 28 U.S.C. § 2244(d)(2)
provides: “The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.” Section 2255(f) provides: “A 1-
year period of limitation shall apply to a motion under this section.”
It proceeds to define when the limitation period starts to run.
10
language or by a limitations period that was unusually generous.
See id. (citing United States v. Brockamp, 519 U.S. 347 (1997),
and United States v. Beggerly, 524 U.S. 38 (1998)). The fact
that AEDPA was silent as to equitable tolling but contained a
provision expressly referring to tolling during state collateral
review proceedings was “easily explained,” without rebutting
the presumption in favor of equitable tolling, by the fact a
petitioner cannot bring a federal habeas corpus claim until after
exhausting state remedies, making it necessary for Congress to
explain how the limitations statute would account for the time
during which the state proceedings were pending. Id. at 2562.
For these reasons the Court “conclud[ed] that neither AEDPA’s
textual characteristics nor the statute’s basic purposes ‘rebut’ the
basic presumption set forth in Irwin.” Id. The Court reaffirmed
that a petitioner is entitled to equitable tolling only if “he shows
(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented
timely filing.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)) (internal quotations omitted).
We hold, in view of Holland, that equitable tolling applies
to motions filed pursuant to § 2255. The textual similarity of
§ 2244(d) and § 2255(f) and their concurrent enactment by
Congress as part of AEDPA indicate that the Court’s reasoning
is no less applicable to § 2255 than to § 2244. Further, because
§ 2255 motions are in the nature of a federal habeas petition, the
equitable principles discussed in Holland with regard to § 2244
apply with equal force to § 2255. Indeed, the government
appears to concede that equitable tolling applies to § 2255
motions, see Appellee’s Br. at 43–44, maintaining only that
McDade merely offered garden variety claims of excusable
neglect to justify the untimeliness of his effective assistance of
trial counsel claim.
11
The facts regarding the filing of McDade's amended § 2255
motion are uncontested. A remand is therefore unnecessary and
we proceed to address whether equitable tolling applies to his
ineffective assistance of trial counsel claim. As the Supreme
Court has held, attorney error alone in calculating a filing
deadline generally does not amount to extraordinary
circumstances. See Lawrence v. Florida, 549 U.S. 327, 336
(2007). Moreover, the Court observed in Irwin that courts have
“typically extended equitable relief only sparingly.” 498 U.S.
at 96. Still, the Court observed approvingly, courts have
“allowed equitable tolling in situations where the claimant has
actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or . . . been induced or
tricked by his adversary’s misconduct into allowing the filing
deadline to pass.” Id. It cautioned that it has generally “been
much less forgiving in receiving late filings where the claimant
failed to exercise due diligence in preserving his legal rights.”
Id.
The missed-deadline cases from this circuit are
distinguishable from McDade’s case. In United States v.
Pollard, 416 F.3d 48, 54, 56 (D.C. Cir. 2005), a highly educated
defendant who had served as an Intelligence Research Specialist
in the U.S. Navy had done no legal research on his own into a
possible § 2255 motion, and filed his second § 2255 motion
approximately thirteen years after his sentencing. In Cicero,
214 F.3d at 204, the defendant waited until almost three years to
file, having had several years prior to his run of misfortune to do
so. By contrast, McDade’s unusual level of diligence and the
extraordinary nature of the situation is documented in letters
before the court that he wrote to post-conviction counsel well
before the § 2255 one-year deadline. McDade researched his
claim and timely advised post-conviction counsel by letters of
his wish to raise an ineffective assistance of trial counsel claim
in challenging his sentence. McDade also gathered evidence
12
in support of his claim, obtaining separate affidavits from three
potential impeachment witnesses regarding what they would
have testified at his trial had they been called in his defense and
forwarding them to counsel. In one of his letters he alerted
counsel almost four months in advance that the one-year
limitation would expire on March 8, 2005. Additionally, he
requested that counsel forward him a draft of his § 2255 motion,
which McDade claims counsel never did. Post-conviction
counsel, who has acknowledged the omission was due solely to
his own inadvertence, failed to heed McDade’s requests until
after the § 2255 deadline had passed. The amended motion
including the ineffective assistance of trial counsel claim was
filed only 30 days past the one-year limitations period. The
circumstances in McDade’s case are thus distinguishable from
“garden variety” error cases that involve the failure of counsel
and the defendant and counsel to properly calculate a deadline
and the defendant’s sitting on his hands.
McDade’s diligence in pursuing his claim and his counsel’s
failure to abide by his requests demonstrate extraordinary
circumstances warranting application of equitable tolling to his
ineffective assistance of trial counsel claim in his amended
§ 2255 motion. That claim is, therefore, properly before the
court.6
B.
To prevail on an ineffective assistance of counsel claim,
McDade must show that counsel’s errors did not meet the
standard of “reasonableness under prevailing professional
6
In view of our holding that equitable tolling applies to
McDade’s § 2255 motion, the court need not address the government’s
alternative argument that McDade’s later-filed ineffective assistance
of counsel claim would not be timely under the “relation back”
standard of Rule 15(c) of the Federal Rules of Civil Procedure.
13
norms.” Strickland, 466 U.S. at 688. When courts evaluate
ineffectiveness claims, their “scrutiny of counsel’s performance
must be highly deferential.” Id. at 689. Where the case involves
a failure to investigate, the “particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.” Id. at 691; see id. at 689. Even if trial
counsel’s decisions were unreasonable, however, McDade still
must meet Strickland’s prejudice prong by showing that “the
decision reached would reasonably likely have been different
absent the errors.” Id. at 696.
This court has “declined to fix the appropriate standard” for
review of the mixed question of law and fact underlying denial
of a § 2255 motion alleging ineffective assistance of counsel,
not having encountered a case where reversal is merited even
under the more searching de novo standard. In re Sealed Case,
488 F.3d 1011, 1016 (D.C. Cir. 2007); see also United States v.
Gwyn, 481 F.3d 849, 853 (D.C. Cir. 2007); United States v.
Toms, 396 F.3d 427, 432–33 (D.C. Cir. 2005).7 Even assuming
a standard that is favorable to McDade (i.e., de novo review with
regard to district court rulings against McDade and more
deferential review of determinations in his favor) does not
7
Other circuits apply a de novo standard of review. See
Familia-Consoro v. United States, 160 F.3d 761, 765 (1st Cir. 1998);
Winkler v. Keane, 7 F.3d 304, 308 (2d Cir. 1993); United States v.
Kauffman, 109 F.3d 186, 187 (3d Cir. 1997); United States v.
Nicholson, 611 F.3d 191, 205 (4th Cir. 2010); United States v. Rivas-
Lopez, 678 F.3d 353, 356 (5th Cir. 2012); Campbell v. United States,
686 F.3d 353, 357 (6th Cir. 2012); Spreitzer v. Peters, 114 F.3d 1435,
1450 (7th Cir. 1997); Nupdal v. United States, 666 F.3d 1074, 1075
(8th Cir. 2012); United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir.
2012); United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011);
Gordon v. United States, 518 F.3d 1291, 1296 (11th Cir. 2008).
14
demonstrate reversal is merited, and we therefore remain
agnostic as to the appropriate standard.
1. In Strickland, 466 U.S. at 691, the Court instructed that
“when a defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or even
harmful, counsel’s failure to pursue those investigations may not
later be challenged as unreasonable.” The district court appears
to agree this is just such a scenario as to Douglas and Flowers.
As to Robinson, however, the district court appears to have
concluded that trial counsel should have recognized that
Robinson’s testimony was potentially substantial enough as to
merit further investigation, whereas the testimony of Douglas
and Flowers was at best insignificant and at worst damaging to
the theory of the case trial counsel intended to present to the
jury. In the district court’s words, “because [trial counsel] did
not conduct any investigation with respect to Robinson, [the
district court] cannot find that [trial counsel] possessed
sufficient information about Robinson’s likely testimony to
make a reasoned judgment that the risk of putting Robinson on
the [witness] stand outweighed the potential impeachment
value.” McDade, 639 F. Supp. 2d at 84.
On appeal, McDade relies primarily on dictum in United
States v. Debango, 780 F.2d 81 (D.C. Cir. 1986). In that case,
the court stated that “the complete failure to investigate
potentially corroborating witnesses . . . can hardly be considered
a tactical decision.” Id. at 85. The court never decided whether
the defense attorney’s decision not to investigate was
unreasonable, however, because it opted to resolve the issue on
Strickland’s prejudice prong instead. Id. In any event, in
Debango the court referred to a “complete failure to
investigate,” whereas McDade’s trial counsel had information
about Douglas’s potential testimony and determined that such
testimony had only limited impeachment value and could be
15
easily attacked on cross-examination in a way to make it seem
that McDade had sent Douglas to intimidate a government
witness in protective custody. Although trial counsel had no
recollection of McDade mentioning Flowers, Flowers’ affidavit
indicates his testimony is essentially the same as Douglas’s,
making him vulnerable to impeachment on cross-examination
for similar reasons. And based on the information that trial
counsel received as a result of his conversations with the
prosecutor about Robinson, his filing of between 70 and 90
subpoenas for evidence, and his conversations with McDade,
trial counsel did not completely fail to investigate Robinson,
only declined to interview him. Other cases on which McDade
relies — Johnson v. Bagley, 544 F.3d 592, 600 (6th Cir. 2008),
and Anderson v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003) —
provide no support for his position because trial counsel decided
not to investigate for a combination of reasons, including the
minimal impact the substance of the testimony would have
regardless of the credibility of the witness.
This appeal, however, does not turn on whether trial counsel
was objectively unreasonable in declining to interview Robinson
and the other two impeachment witnesses about their potential
testimony. As the district court found regarding Robinson, it is
unlikely, given trial counsel’s effective impeachment of the
government’s witnesses, and Robinson’s intention to assert his
Fifth Amendment privilege with regard to most questions, that
further impeachment testimony from him would have resulted
in a different outcome at trial.
2. Under Strickland’s prejudice prong, McDade must show
a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
United States v. Carter, 449 F.3d 1287, 1296 (D.C. Cir. 2006)
(quoting Strickland, 466 U.S. at 694) (internal quotations
omitted). Robinson testified at the § 2255 motion evidentiary
16
hearing that if he had been called as a witness at McDade’s trial,
he “would have invoked the Fifth Amendment” with regard to
anything beyond whether he had “introduc[ed] Mr. McDade to
Ms. Webster.” Tr. Jan. 15, 2008 at 103. Given that Robinson’s
testimony would have been so limited, the district court noted
that any proposition that he would have let Robinson testify was
“dubious . . . at best.” McDade, 637 F. Supp. 2d at 85. Because
it is unlikely that the district court would have permitted
Robinson to testify, there is no “reasonable probability” that
Robinson’s testimony would have affected the result of the
proceedings.
It is McDade’s position that if the district court had allowed
Robinson to testify (or if the government had granted him
immunity), then Robinson’s testimony that he had not
introduced McDade to Phyllis Webster would have had a
sufficient impact on the outcome of the trial to merit a finding
of ineffective assistance under Strickland. McDade’s
arguments, however, focus on the fact that Robinson was
incarcerated during the period when Webster testified he had
introduced her to McDade. Whether or not he was incarcerated,
the issue of whether Robinson introduced Webster and McDade
is a relatively minor point; tape recordings established Webster
and McDade were working together in some capacity, and
Webster and Minder were not the only government witnesses to
testify that McDade was selling cocaine he received from
Webster. Additionally, through cross examination trial counsel
had undermined Webster’s testimony to the extent that
additional impeachment testimony to the effect that Robinson
had not introduced Webster to McDade “might,” as the district
court found, have only “tarnished Webster’s credibility
slightly.” McDade, 639 F. Supp. 2d at 85. Robinson’s
testimony, in sum, was unlikely to “undermine confidence in
the outcome.” Strickland, 466 U.S. at 694. This is true even if
all three — Douglas, Flowers, and Robinson — had testified; the
17
minimal impact of their impeachment testimony over and above
the impeachment otherwise achieved by trial counsel through
cross examination of the government’s witnesses would have
been insufficient to show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id.Accordingly, because McDade fails to meet his burden
under Strickland, we affirm.