United States v. Calvin Dyess

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7335

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CALVIN DOUGLAS DYESS, a/k/a Carlos, a/k/a Calcutta, a/k/a
Rawmel,

Defendant – Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber,
Senior District Judge. (2:08-cv-00849; 2:99-cr-00012-1)

Argued: May 16, 2013 Decided: September 16, 2013

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the opinion in
which Judge Niemeyer joined and in which Judge Gregory joined as
to Parts I, II, and IV. Judge Gregory wrote a dissenting
opinion as to Part III.

ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, P.S.C.,
Covington, Kentucky, for Appellant. Kimberly Riley Pedersen,
OFFICE OF UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Appellee.
SHEDD, Circuit Judge:

Calvin Dyess pled guilty to conspiracy to distribute

cocaine, cocaine base, and marijuana, in violation of 21 U.S.C.

§ 846 and 21 U.S.C. § 841(b), and conspiracy to commit money

laundering, in violation of 18 U.S.C. § 1956, and was sentenced

to life imprisonment. We affirmed his conviction and sentence

on direct appeal. United States v. Dyess, 478 F.3d 224 (4th

Cir. 2007) (Dyess I). Dyess then filed a 28 U.S.C. § 2255

motion, which the district court denied. Dyess v. United

States, 2011 WL 3667528 (S.D. W.Va. 2011) (Dyess II). Dyess now

appeals and, for the following reasons, we affirm.

I.

The facts and procedural history of Dyess’ case are

thoroughly recounted in our earlier opinion. See Dyess I at

226-33. Briefly, and as relevant here, Dyess and several co-

conspirators were indicted in a thirteen-count indictment

arising from their operation of a large-scale drug conspiracy in

Charleston, West Virginia, from 1995 to 1998. 1 Before trial, the

Government met with Dyess, indicating the strength of its case

against him and informing him that he was likely to receive a

life sentence unless he was acquitted or pled guilty and offered

1
The criminal investigation into Dyess’ organization led to
more than 20 criminal convictions, including drug suppliers from
New York.

2
substantial assistance. Just days after meeting with the

Government, Dyess entered a plea agreement whereby he agreed to

plead guilty to conspiring to distribute cocaine, cocaine base,

and marijuana and conspiring to commit money laundering. In

exchange, the Government agreed to dismiss the remaining counts.

Among the counts dismissed was a continuing criminal enterprise

charge, 21 U.S.C. § 848, which carried a 20-year mandatory

minimum sentence. At the plea hearing, the district court

expressly told Dyess (among other things) that he was facing a

sentence of ten years to life imprisonment on the drug

conspiracy count. Dyess stated that he understood, and the

court accepted his plea.

A presentence report (PSR) was prepared for Dyess, finding

that he was responsible for 20 kilograms of cocaine, 80

kilograms of cocaine base, and 272.16 kilograms of marijuana.

These drug amounts yielded a base-offense level of 38 and, when

coupled with several enhancements, resulted in a guidelines

range of life imprisonment. Dyess objected to the drug amounts

and, at a contested sentencing hearing, the district court heard

from multiple witnesses about the scope of Dyess’ drug

enterprise. For example, one witness, Leon Mitchell, testified

that he and Dyess handled between 75 and 100 kilograms of

cocaine, half of which they cooked into crack cocaine. The

3
district court upheld the PSR’s findings and accordingly

sentenced Dyess to life.

Dyess timely appealed. While Dyess’ appeal was pending,

the Government was contacted by Rachel Ursala Rader, Dyess’ wife

during the conspiracy. Rader informed the Assistant U.S.

Attorney (AUSA) that, during the investigation, she had engaged

in a sexual relationship with William Hart, a detective and one

of the lead investigators in Dyess’ case. Rader also informed

the AUSA that Hart had let her keep certain drug proceeds that

she offered to turn over and had helped to craft her testimony

at the sentencing hearing. When presented with this

information, we issued an order remanding the case for

appropriate proceedings.

On remand, Dyess moved to dismiss the indictment for

government misconduct, to withdraw his plea, and to be

resentenced. 2 The district court denied the first two requests

and deferred ruling on the motion for resentencing pending an

evidentiary hearing. Prior to this evidentiary hearing,

however, the district judge (Judge Haden) passed away. The case

2
Dyess also moved to disqualify the U.S. Attorney’s Office
for the Southern District of West Virginia. The district court
granted this motion. United States v. Dyess, 231 F.Supp.2d 493
(S.D.W.Va. 2002). The court found no wrongdoing by the office,
but concluded that the attorneys could be called as witnesses in
future proceedings. Since that time, the Government has been
represented by Special Assistants to the Attorney General.

4
was reassigned to District Judge Faber, who then held an

evidentiary hearing limited to the issue of whether Hart’s

misconduct and the perjury of Rader (and several others) at the

sentencing affected Dyess’ sentence. The court explained that

if the answer was “yes,” a new sentencing would be held. After

the hearing, which included testimony from witnesses impacted by

Hart’s misconduct, the district court found the tainted

testimony did not affect Dyess’ sentence and declined to hold a

resentencing. Dyess appealed, and we affirmed. Dyess I, 478

F.3d at 227.

In 2008, Dyess filed a motion to vacate his sentence under

28 U.S.C. § 2255. The district court eventually denied that

motion. Dyess II, 2011 WL 3667528, at *13. Dyess filed this

appeal, and this court granted Dyess a COA on six claims: (1)

whether the district court erred in failing to address all

claims raised in Dyess’ § 2255 motion filed on September 29,

2008; (2) whether Dyess was sentenced in violation of Apprendi

v. New Jersey, 530 U.S. 466 (2000); (3) whether Dyess’ trial

counsel was ineffective for failing to discover and disclose

Hart’s misconduct; (4) whether Dyess’ trial counsel was

ineffective for failing to object to the superseding

indictment’s lack of specific drug quantities and in advising

Dyess to plead guilty to the indictment; (5) whether Dyess’

remand counsel was ineffective for failing to call all witnesses

5
from Dyess’ sentencing hearing to testify at the evidentiary

hearing; and (6) whether Dyess’ remand counsel was ineffective

for failing to effectively challenge Dyess’ guilty plea on

remand. We review the district court’s legal conclusions in

denying Dyess’ § 2255 motion de novo and its factual findings

for clear error. United States v. Stitt, 552 F.3d 345, 350 (4th

Cir. 2008).

II.

Dyess’ first contention is that the district court erred in

failing to address all of his § 2255 claims. Dyess filed a

“letter” with the court in June 2008 challenging his sentence

and requesting appointment of counsel. The district court

denied the motion for counsel, construed the letter as a § 2255

motion, and ordered Dyess to file the appropriate paperwork

listing all his grounds for relief. Dyess then filed a § 2255

motion on September 29, 2008, listing out approximately 30

claims for relief, roughly 25 of which consisted of a single

sentence with no further explanation or factual development. In

February 2010, Dyess filed a request to file an “amended” § 2255

petition, raising 16 claims, most of which alleged ineffective

assistance of counsel. Several of these claims were repeated

from his earlier filings. The district court ruled that,

“[g]iven Mr. Dyess’ later submission” it was appropriate to

6
consider only the claims in the amended petition. Dyess II,

2011 WL 3667528, at *1.

Dyess claims that the court erred in considering only the

claims in the amended complaint and that the case should be

remanded for consideration of the roughly 40 claims raised in

his initial § 2255 motion and several letters. We disagree.

With the exception of the Apprendi claim addressed below, Dyess

has never identified which of these claims he believes to have

merit. Most, as the Government notes, fail the requirement that

a habeas petition “is expected to state facts that point to a

real possibility of constitutional error.” Blackledge v.

Allison, 431 U.S. 63, 75 n.7 (1977) (internal quotation marks

omitted). The rules governing habeas proceedings make this very

point:

If it plainly appears from the motion and any attached
exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must
dismiss the motion.

Rule 4(b), Rules Governing Section 2255 Proceedings for the
United States District Courts.

Thus, “vague and conclusory allegations contained in a §

2255 petition may be disposed of without further investigation

by the District Court.” United States v. Thomas, 221 F.3d 430,

437 (3d Cir. 2000). See also Jones v. Gomez, 66 F.3d 199, 204

(9th Cir. 1995) (noting “conclusory allegations which are not

supported by a statement of specific facts do not warrant habeas

7
relief”) (internal quotation marks omitted); Andiarena v. United

States, 967 F.2d 715, 719 (1st Cir. 1992) (holding claim that

included “wholly conclusory” “abstract allegation” was “properly

subject to summary dismissal”). We do not believe the district

court erred in limiting its review to the 16 claims in the

amended petition that were supported by facts and argument,

particularly where many of the claims in the amended § 2255

motion were also raised in the original filing and the rest

consisted only of vague and conclusory allegations.

III.

Dyess next claims that his sentence violates Apprendi

because the indictment did not allege a specific drug quantity.

Under Apprendi, “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.

In United States v. Promise, 255 F.3d 150, 156-57 (4th Cir.

2001) (en banc), we held that Apprendi requires drug amounts

under § 841(b) to be alleged in the indictment. Dyess thus

argues that, because his conviction and sentence did not become

8
final until after Apprendi, 3 the superseding indictment’s failure

to supply a drug amount limits his maximum sentence to 20 years. 4

Dyess’ argument fails for two reasons. First, it is well

settled that Dyess cannot “circumvent a proper ruling . . . on

direct appeal by re-raising the same challenge in a § 2255

motion.” United States v. Linder, 552 F.3d 391, 396 (4th Cir.

2009). See also United States v. Roane, 378 F.3d 382, 396 n.7

(4th Cir. 2004) (noting that, absent “any change in the law,”

defendants “cannot relitigate” previously decided issues in a §

2255 motion); Boeckenhaupt v. United States, 537 F.2d 1182, 1183

(4th Cir. 1976) (holding criminal defendant cannot “recast,

under the guise of collateral attack, questions fully considered

by this court [on direct appeal]”). Dyess raised his Apprendi

argument on remand to the district court and raised it in his

brief to us in Dyess I. In Dyess I, we specifically noted that

Dyess “argued for re-sentencing on the basis of the United

States Supreme Court’s intervening decision in Apprendi,” that

the district court “denied” this relief, and that we “affirm the

convictions and sentences.” Dyess, 478 F.3d at 227. This

3
Apprendi was decided in 2000, and our decision affirming
his conviction was issued in 2007.
4
21 U.S.C. 841(b)(1)(C) provides that distribution of an
undetermined amount of a schedule I or II controlled substance
“shall be sentenced to a term of imprisonment of not more than
20 years.”

9
conclusion plainly bars Dyess from raising this claim in his §

2255 motion. 5

Moreover, even assuming Dyess could raise this claim, under

the facts of this case, it still fails. Dyess waited until the

remand from this court to raise the issue, well after judgment

issued. Accordingly, any Apprendi claim Dyess raises would be

reviewed for plain error. See Fed. R. Crim. P. 52(b). “To

obtain relief under plain-error review, [a criminal defendant]

must first establish that the district court erred, that the

error was plain, and that it affected his substantial rights.”

United States v. Abdulwahab, -- F.3d --, 2013 WL 1789741, at *9

(4th Cir. 2013) (internal quotation marks omitted). Even if a

defendant makes this showing, “we have discretion whether to

5
Dyess argues that we did not specifically discuss his
Apprendi claim and focused instead on his argument under Booker
v. United States, 543 U.S. 220 (2005). There is no requirement
that a court specifically discuss every issue raised by an
appellant. See Affymax, Inc. v. Ortho-McNeil-Janssen Pharm.,
Inc., 660 F.3d 281, 285 (7th Cir. 2011) (noting “[f]ederal
courts . . . often let issues pass in silence”); United States
v. Patel, 879 F.2d 292, 295 (7th Cir. 1989) (denying rehearing
petition “complain[ing] about the failure of the court to
discuss every issue,” because “[w]hen issues patently lack
merit, the reviewing court is not obliged to devote scarce
judicial resources to a written discussion of them”). Dyess
raised Apprendi in his direct appeal, we noted that he had made
the argument to the district court, and we affirmed his
conviction and sentence in all respects. Nothing more is
required. To the extent Dyess believes we overlooked his
argument, the remedy was to file a petition for rehearing or—as
Dyess unsuccessfully did—seek a writ of certiorari to the
Supreme Court, not to file a § 2255 motion.

10
recognize the error, and should not do so unless the error

seriously affects the fairness, integrity or public reputation

of judicial proceedings.” United States v. Hargrove, 625 F.3d

170, 184 (4th Cir. 2010) (internal quotation marks omitted).

In United States v. Cotton, 535 U.S. 625, 633 (2002), the

Court held that Apprendi errors under §841(b) should not be

recognized on plain error review when the evidence as to drug

quantity was “overwhelming” and “essentially uncontroverted.”

In this case, because “a cursory review of the record reveals

that the conspiracy charged here indisputably involved

quantities of cocaine and cocaine base far in excess of the

minimum amounts necessary to sustain the sentences,” any

Apprendi error “does not seriously affect the fairness,

integrity, or public reputation of judicial proceedings so as to

warrant notice.” United States v. Mackins, 315 F.3d 399, 408

(4th Cir. 2003). 6

IV.

Dyess’ remaining claims challenge the effectiveness of his

counsel, both at the time he pled guilty and on remand from this

6
To qualify for a life sentence under § 841(b)(1)(A), a
defendant must be found responsible for, as relevant here, at
least 5 kilograms of cocaine or 280 grams of cocaine base. As
discussed above, one witness testified that the conspiracy
involved at least 75 to 100 kilograms of cocaine, of which half
was cooked into cocaine base.

11
court. In order to establish ineffective assistance, Dyess must

show “(1) that his attorney’s performance ‘fell below an

objective standard of reasonableness’ and (2) that he

experienced prejudice as a result, meaning that there exists ‘a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.’” United States v. Fugit, 703 F.3d 248, 259 (4th

Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687–

88, 694 (1984)).

A.

Dyess’ first two ineffective assistance claims allege that

trial counsel was ineffective for failing to object to the lack

of drug quantity in the indictment and for failing to discover

Hart’s misconduct. These claims both relate to Dyess’ decision

to plead guilty. “In that situation, a person must demonstrate

‘a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going

to trial.’” Fugit, 703 F.3d at 259 (quoting Hill v. Lockhart,

474 U.S. 52, 59 (1985)). The Supreme Court recently reaffirmed

that “[s]urmounting Strickland’s high bar is never an easy task”

in the guilty-plea setting. Padilla v. Kentucky, 130 S.Ct.

1473, 1485 (2010). Thus, Dyess must convince us that the

decision to go to trial “would have been rational under the

circumstances.” Id. Dyess’ “subjective preferences, therefore,

12
are not dispositive; what matters is whether proceeding to trial

would have been objectively reasonable in light of all the

facts.” Fugit, 703 F.3d at 260. Given this standard, we

conclude the district court correctly dismissed Dyess’ claims

against trial counsel.

1.

Dyess’ first claim alleges that trial counsel failed to

investigate and discover Hart’s affair with Dyess’ wife prior to

Dyess’ guilty plea. Dyess, however, raised a variation on this

claim in his direct appeal, arguing that his attorney “rendered

ineffective assistance by failing to uncover Hart and Miss

Rader’s love affair and anticipate the impact it would have at

sentencing.” Dyess I, 478 F.3d at 238. We rejected Dyess’

claim, finding that “the federal prosecutors” had “no knowledge”

of the affair until well after sentencing, and Dyess “offer[ed]

no indication as to why his attorney should be expected to have

some special knowledge of the situation.” Id.

Even assuming our earlier conclusion does not bar this

claim, it lacks merit. We have indicated that “[a]lthough

counsel should conduct a reasonable investigation into potential

defenses, Strickland does not impose a constitutional

requirement that counsel uncover every scrap of evidence that

could conceivably help their client.” Green v. French, 143 F.3d

865, 892 (4th Cir. 1998) overruled on other grounds by Williams

13
v. Taylor, 529 U.S. 362 (2000). Dyess claims that, after his

guilty plea but prior to sentencing, he learned from fellow

inmates that Hart and Rader had been seen holding hands at

nightclubs. (J.A. 852). Dyess alleges that he told his counsel

this fact on two occasions, including once after seeing Hart at

the jail. According to Dyess, counsel hired an investigator but

was unable to substantiate Dyess’ claim and declined to raise

the issue at sentencing without concrete evidence. Dyess also

alleges that counsel held “meetings” with him “to develop a plan

of action, while Dyess told them all that he could learn.”

(J.A. 852). Dyess’ counsel thus conducted an appropriate

investigation—all that Strickland requires. While a failure to

investigate a “critical” witness can be ineffective assistance,

see Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998), we

have never held that an attorney’s hiring of an investigator who

fails to discover evidence renders that attorney ineffective.

Although we now know that Dyess’ suspicions were true, that does

not make counsel’s failure to uncover the affair in 1999

ineffective assistance.

Moreover, Dyess cannot show prejudice. Dyess was facing a

potential life sentence; he pled guilty shortly after the

Government informed him that his only opportunity to avoid a

life sentence was to be acquitted or to plead guilty and offer

14
substantial assistance in exchange for a sentence reduction. 7

Dyess then failed to offer assistance. The Government had

overwhelming evidence of Dyess’ guilt—his arrest and prosecution

were the result of a long investigation complete with wiretaps,

drug buys, and co-conspirator testimony. Dyess also received a

substantial benefit from pleading guilty—the Government

dismissed nine of the eleven counts against him, one of which

carried a 20-year mandatory minimum. Cf Fugit, 703 F.3d at 260-

61 (finding no prejudice from alleged ineffective assistance

where Government would have offered overwhelming evidence at

trial and defendant would have faced a longer sentence). We

recognize that Dyess ultimately received a life sentence despite

pleading guilty. This fact, however, does not change our

analysis because, at the time Dyess entered his plea, a rational

defendant would have recognized that a conviction inevitably

would lead to a life sentence. Conversely, entering a plea

agreement, which removed a count with a higher mandatory minimum

(20 years under § 848 versus ten years under § 841(b)), and

offering substantial assistance provided the best opportunity to

avoid a life sentence. While Dyess subjectively claims he would

7
United States Sentencing Guideline Manual § 5K1.1 provides
that, “[u]pon motion of the government stating that the
defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed
an offense, the court may depart from the guidelines.”

15
have gone to trial had he known of Hart and Rader’s

relationship, objectively a reasonable defendant would have pled

guilty and offered substantial assistance.

2.

We also find Dyess’ second ineffective claim against trial

counsel lacks merit. Dyess claims that, in light of Jones v.

United States, 526 U.S. 227 (1999), counsel should have

recognized that drug weights were an element of the offense

under § 841(b) that must be charged in the indictment. In

Jones, the Supreme Court examined the federal carjacking statute

and held that certain sentencing enhancements applicable to that

statute were actually elements of the charged offense. Id. at

239. The Court noted that its decision was based on the concern

that “under the Due Process Clause of the Fifth Amendment and

the notice and jury trial guarantees of the Sixth Amendment, any

fact (other than prior conviction) that increases the maximum

penalty for a crime must be charged in the indictment, submitted

to a jury, and proven beyond a reasonable doubt.” Id. at 243

n.6.

Dyess argues that, based on Jones, a reasonably prudent

attorney would have raised the argument that drug weight was an

element of the offense under § 841(b) that had to be indicted

and tried to the jury. Dyess’ claim is foreclosed by precedent.

In United States v. McNamara, 74 F.3d 514, 516 (4th Cir. 1996),

16
we held that “an attorney’s failure to anticipate a new rule of

law was not constitutionally deficient.” In that case, we

rejected the contention that counsel was ineffective “for

failing to preserve an issue at trial based merely on the

Supreme Court’s grant of certiorari in a case which raised the

issue.” Id. See also Lewis v. Wheeler, 609 F.3d 291, 310 (4th

Cir. 2010) (finding no ineffective assistance for failing to

make argument that was not necessarily forecasted by Supreme

Court decision and would have represented an extension of that

decision).

Jones was decided after Dyess’ superseding indictment but

prior to his guilty plea and sentencing. At the time Jones was

decided, “every federal circuit court considered drug quantity

to be a sentencing factor,” United States v. Sanders, 247 F.3d

139, 147 (4th Cir. 2001), a view courts adhered to even after

Jones, see United States v. Taylor, 210 F.3d 311, 320 (5th Cir.

2000); United States v. Smith, 205 F.3d 1336, 2000 WL 139250

(4th Cir. 2000) (unpublished). Indeed, it was the “universal

practice” to contest drug weights at sentencing. United States

v. Carrington, 301 F.3d 204, 212 (4th Cir. 2002). We did not

extend Jones and Apprendi to § 841(b) until 2001, more than two

years after Dyess’ sentencing. See Promise, 255 F.3d at 156-57.

Accordingly, Dyess’ counsel was not deficient by failing to

anticipate Apprendi.

17
 Moreover, Dyess again cannot show that any (assumed)

deficient performance by trial counsel prejudiced him. As the

Government notes, if Dyess had raised this objection, the

Government could have simply issued a superseding indictment

with drug weights or proceeded under a criminal information.

Given the overwhelming evidence in support of the drug weights,

there was no obstacle to pursuing either course. In addition,

as previously discussed, pleading guilty and offering

substantial assistance was, objectively, Dyess’ best option to

avoiding a potential term of life imprisonment.

B.

Dyess’ final two claims allege that remand counsel was

ineffective. We find both of these claims to be without merit.

1.

Dyess first argues that remand counsel failed to call all

of the necessary witnesses at the evidentiary hearing involving

Hart’s misconduct. As noted above, in Dyess’ direct appeal, we

remanded for appropriate proceedings. On remand, Dyess moved

for, among other relief, a resentencing. The district court

granted an evidentiary hearing to address any taint at the

sentencing, but “defer[red] decision on Defendants’ motion for

resentencing until after the evidentiary hearing.” (J.A. 577).

The only witnesses whose testimony was possibly tainted by

Hart’s misconduct were Rader, Hart, Hart’s partner Detective

18
Henderson, Lori Cummings (Dyess’ girlfriend), and Benjamin

Green. 8

At the opening of the hearing the district court (Judge

Faber) reiterated the hearing’s limited scope:

[I]t seems to me the inquiry is really pretty simple.
Maybe I’m oversimplifying things, but we have a record
of the sentencing, we have a record of the evidence
that was before Judge Haden that he based his ruling
on. It seems to me that my task—and you can correct
me if you disagree with this, and I hope you will. My
task is to look at that in the light of what we know
now and see if he relied, to any extent, on any of the
information that we now know to be false or tainted [
... ] It seems to me that’s the simple inquiry. And
we know—we have a record of what he looked at, we have
a record of the information that’s come to light since
then, and the issue is whether the bad information was
considered by him or not.

(J.A. 590).

At the evidentiary hearing, Dyess’ counsel called Rader,

Hart, Henderson, Cummings, Green, 9 and the probation officer.

The AUSA who originally prosecuted Dyess also testified. Thus,

all of the witnesses relevant to the evidentiary hearing were

called. Dyess’ claim is targeted at the fact that the
8
Cummings and Green filed affidavits on Dyess’ behalf
alleging that their prior testimony against Dyess at his earlier
sentencing (Green) and at the grand jury (Cummings) was
fabricated and that Hart engaged in misconduct with them. Both
Cummings and Green recanted these affidavits, however, and
admitted that Dyess instructed them to sign and file them.
9
Green ultimately did not testify; the district court,
however, took judicial notice of the fact that “Green had
subsequently recanted the affidavit” and “entered into a plea
agreement.” (J.A. 752).

19
evidentiary hearing was limited in scope and did not encompass

all of the voluminous testimony from his first sentencing

hearing. That was the district court’s decision, one which we

affirmed on direct appeal.

Moreover, we give counsel wide latitude in determining

which witnesses to call as part of their trial strategy. See

Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998) (quoting

Pruett v. Thompson, 996 F.2d 1560, 1571 n. 9 (4th Cir. 1993))

(“Decisions about what types of evidence to introduce ‘are ones

of trial strategy, and attorneys have great latitude on where

they can focus the jury’s attention and what . . . evidence they

can choose not to introduce.’”). Here, even now, Dyess offers

nothing more than speculative conclusions in explaining who

remand counsel failed to call and what aid their testimony would

have provided to Dyess’ case. Given the limited scope of the

evidentiary hearing, and the deference afforded to counsel in

making strategic decisions, Dyess cannot show remand counsel was

deficient on this ground.

2.

Dyess’ second allegation against remand counsel fares no

better. Dyess contends that remand counsel failed to

“effectively challenge” his guilty plea on remand. Dyess moved

to withdraw his guilty plea on remand, arguing that it was not

knowing and voluntary and that the Government breached the

20
agreement. The district court denied this motion, and we

affirmed. Dyess I, 478 F.3d at 237. We found that Dyess’

motion was “post-sentencing” and could succeed only if the

“underlying plea proceedings were marred by a fundamental defect

that inherently resulted in a complete miscarriage of justice,

or in omissions inconsistent with rudimentary demands of fair

procedure.” Id. (internal quotation marks omitted). Applying

this standard, we affirmed the denial of the motion.

Importantly, we rejected Dyess’ claim that his plea was

unknowing because he faced a life sentence and because trial

counsel failed to uncover the Hart/Rader relationship.

In his § 2255 motion, Dyess claimed ineffectiveness on this

ground because his remand counsel should have based the

withdrawal motion on “several lies” that his trial counsel told

him. Dyess II, 2011 WL 3667528, at *11. The district court

rejected this ground by recounting that Dyess did move to

withdraw his plea on remand, and that his § 2255 motion was

unsupported by anything but conjecture about the supposed “lies”

from counsel. Before us, Dyess now argues that his plea should

have been attacked under Apprendi. Dyess, however, did not

raise this claim to the district court. United States v. Muth,

1 F.3d 246, 250 (4th Cir. 1993) (court of appeals will not

address contentions raised for the first time on appeal).

21
 Moreover, even assuming the claim is properly before us, it

fails on the merits because Dyess cannot show prejudice.

Although Dyess’ counsel did not raise Apprendi as a ground for

withdrawing his guilty plea, Dyess, acting pro se, did raise

that argument, and the court rejected it. (J.A. 561) (noting

“[Dyess] argues pro se that his plea was not knowing because no

drug quantity was stated in the indictment” and rejecting the

argument in light of Cotton). Dyess has not shown how that

result would have differed if counsel had made the argument, and

it is unclear that it would have. See United States v.

Martinez, 277 F.3d 517, 533 (4th Cir. 2002) (declining to

recognize Apprendi error during Rule 11 colloquy because plea

resulted in significant benefits to defendant, indicating no

reasonable belief that defendant would have withdrawn plea).

This claim thus also lacks merit.

V.

For the foregoing reasons, we affirm the district court’s

denial of Calvin Dyess’ § 2255 motion.

AFFIRMED

22
GREGORY, Circuit Judge, dissenting as to Part III:

When we decided this case in 2007 on direct appeal, the

Supreme Court had made clear that any fact increasing the

maximum penalty for a crime must be charged in the indictment.

United States v. Cotton, 535 U.S. 625, 627 (2002); Apprendi v.

New Jersey, 530 U.S. 466, 476 (2000); Jones v. United States,

526 U.S. 227, 243 n.6 (1999). We consider this part of the

constitutional test under Apprendi. United States v. Promise,

255 F.3d 150, 156-57 (4th Cir. 2001) (en banc). In his argument

before this Court on direct appeal, Dyess contended there was

Apprendi error because the indictment failed to allege the drug

quantity that increased his maximum sentence to life

imprisonment. On direct appeal, we did not discuss nor decide

whether the indictment itself was defective under Apprendi.

United States v. Dyess, 478 F.3d 224 (4th Cir. 2007). The

majority insists today that our muteness was in fact a decision

sub silentio against Dyess on his Apprendi argument. I

certainly agree with the majority that “a criminal defendant

cannot ‘recast, under the guise of collateral attack, questions

fully considered by this court [on direct appeal].’” Ante 10

(quoting Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th

Cir. 1976)) (emphasis added). However, we did not “fully

23
consider” Dyess’s Apprendi argument. 1 We conducted an analysis

of Dyess’s argument under United States v. Booker, 543 U.S. 220

(2005), a progeny of Apprendi. See Dyess, 478 F.3d at 240.

But, beyond noting that Dyess raised an Apprendi challenge, we

did not address his straightforward argument that the indictment

violated Apprendi for failing to allege a drug quantity.

The omission is particularly odd given that Judge Haden

recognized the viability of Dyess’s argument. When we first

remanded this case for further proceedings after the revelations

of government misconduct, Judge Haden explained that “[b]ecause

the superseding indictment in these cases did not state a drug

quantity, at any resentencing this Court is limited to the

twenty-year statutory maximum of § 841(b)(1)(C).” United States

v. Dyess, 293 F. Supp. 2d 675, 693 (S.D. W. Va. 2003). I would

find that our silence on the matter in such an extraordinary

case was an oversight that permits us to proceed with a full

analysis on habeas review.

1
Of course, it is true that a court need not explicitly
address each and every argument to decide and dispense of that
argument. See Malbon v. Penn. Millers Mut. Ins. Co., 636 F.2d
936, 939 n.8 (4th Cir. 1980) (explaining that it is not
“absolutely necessary” that a court specifically recite and
discuss each argument advanced by the parties). However, there
is nothing that requires that we interpret a court’s silence on
an argument as a decision rejecting the argument on its merits.

24
 Even though the majority holds that Dyess cannot raise his

Apprendi claim in his habeas petition, it offers an analysis of

the merits of the claim. That analysis begins with the

assertion that we should apply plain error review because “Dyess

waited until the remand from this court to raise the issue

. . . .” Ante 10. The majority treats this case as if it was a

run-of-the-mill drug prosecution, giving insufficient weight to

misconduct by the lead investigator and key witness for the

prosecution. Our remand in response to revelations of this

pervasive misconduct amounted to pressing a reset button -- it

thrust the case back into a pre-sentencing posture. Because

Dyess raised his Apprendi argument with particularity while the

case was in this pre-sentencing posture, we are obliged to apply

the harmless error standard of review. Fed. R. Crim. P. 52(a);

United States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006).

Under the harmless error standard, a defendant is “entitled

to relief if the error has affected his substantial rights.”

United States v. Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006).

Significantly, under harmless error review, the government bears

the burden of establishing that the error did not affect the

defendant’s substantial rights. Id. Because Apprendi error is

constitutional in nature, the government must establish that it

was harmless beyond a reasonable doubt. See Chapman v.

California, 386 U.S. 18, 24 (1967); United States v. Mackins,

25
315 F.3d 399, 405 (4th Cir. 2003) (applying the Chapman burden

to Apprendi error).

When a sentence violates Apprendi because the underlying

indictment fails to allege drug quantities sufficient to raise

the maximum sentence, a defendant’s substantial rights are

violated. Promise, 255 F.3d at 160. Here, the indictment did

not allege a drug quantity. As Judge Haden indicated, Dyess’s

maximum sentence should therefore have been twenty years, not

life.

Because the government assumes that plain error review

should apply, it makes no explicit attempt on appeal to carry

its high burden of proving that the error was harmless beyond a

reasonable doubt. However, the government argues that Dyess’s

admissions in his plea agreement offer adequate support for his

life sentence. Normally, a defendant’s admission of requisite

drug quantities in a plea agreement cures Apprendi error in the

indictment. See, e.g., United States v. Flagg, 481 F.3d 946,

950 (7th Cir. 2007); United States v. Silva, 247 F.3d 1051, 1060

(9th Cir. 2001). But, once again, this is far from being a

normal case. Judge Haden, who had been on the bench for some

thirty-four years before he passed away, observed upon remand

that “[t]his case presents questions of ethical conduct and the

appearance of impropriety . . . unprecedented in this Court’s

experience. The lead AUSA who prosecuted this case also managed

26
case agents and witnesses who allegedly (and by their own

admissions) stole drug proceeds, suborned perjury, lied under

oath, and tampered with witnesses.” United States v. Dyess, 231

F. Supp. 2d 493, 495 (S.D. W. Va. 2002). The lead investigator

made a full-fledged and successful effort to woo Dyess’s wife,

Ursula Rader, even marrying her after Dyess was sentenced. J.A.

624. He literally crafted exhibits to illustrate drug quantity

that Rader and he referred to while giving testimony at Dyess’s

sentencing hearing. J.A. 621-23.

After learning of the lead investigator’s misconduct, we

remanded the case for further proceedings. J.A. 508. Rather

than testify at an evidentiary hearing designed to gauge the

impact his misconduct had on the evidence, the lead investigator

claimed his Fifth Amendment right to remain silent. Amazingly,

it appears the government did not compel his testimony by

providing immunity. Nor did the government compel testimony

after he entered a guilty plea to the charge against him --

misappropriation of government funds of $1,000 or less. 2 As a

result, we have never truly learned the extent to which his

misconduct tainted the evidence against Dyess.

2
At oral argument, the government was unable to provide any
clarity regarding the prosecution of the lead investigator other
than that he pled guilty to this charge.

27
 Given that Dyess’s admissions took place in the context of

rampant government wrongdoing, they should not prevent us from

noticing Apprendi error. The fairness of a plea goes well

beyond a question of guilt or innocence. See Stephanos Bibas,

Regulating the Plea-Bargaining Market: From Caveat Emptor to

Consumer Protection, 99 Cal. L. Rev. 1117, 1139-40 (2011). When

a defendant makes a decision to plea, he must weigh the

“advantages and disadvantages of a plea agreement” against other

possible scenarios. See Padilla v. Kentucky, 130 S. Ct. 1473,

1484 (2010). Here, the appearance of advantages and

disadvantages was warped by rife government misconduct. As

such, Dyess’s admission to drug quantity should not be

dispositive in our Apprendi analysis.

Even if plain error applies to this case, as the majority

contends, Cotton does not control the outcome. The majority

correctly explains that in Cotton, the Supreme Court declined to

notice plain error under the fourth prong of the test put

forward in United States v. Olano, 507 U.S. 725, 732 (1993),

because evidence of drug quantity was “overwhelming,” and

“essentially uncontroverted.” Ante 11 (quoting Cotton, 535 U.S.

at 633). Ultimately, the Cotton Court found that while there

may have been plain Apprendi error, there was “no basis for

concluding that the error seriously affected the fairness,

28
integrity, or public reputation of judicial proceedings.”

Cotton, 535 U.S. at 632-33.

Unlike in Cotton, the pervasive nature of the misconduct

committed by the government in this case has discredited a

substantial amount of the evidence against Dyess. For instance,

Rader admitted that she lied when she testified that she created

the demonstrative exhibits illustrating the quantity of drugs

she had observed Dyess handle. See J.A. 89-94, 621-24. As

mentioned above, the lead investigator created those exhibits.

J.A. 621. He then coached Rader on how to testify about the

exhibits, and became angry and abusive when she told him she

could not remember or did not know how much drugs she had seen.

J.A. 623-24.

While we may have affirmed the district court’s finding that

sufficient untainted evidence remained to sustain the

conviction, it is undeniable that government misconduct in this

case severely weakened the evidence against Dyess. The

remaining untainted evidence is not “overwhelming” and

“essentially uncontroverted.” See Cotton, 535 U.S. at 633.

Further, it is hypocrisy of the first order for the government

to proclaim that we should not notice plain error because there

has been no damage to the “fairness, integrity or public

reputation of judicial proceedings.” See id. The lead

investigator’s behavior and misconduct undermined the judicial

29
proceedings in this case. The best way for the prosecution to

repair that damage would have been to concede to re-sentencing

in a conciliatory effort to condemn this mess to history.

Instead, the government charges headlong towards securing a life

sentence under these troubling circumstances. I cannot condone

this. I respectfully dissent.

30