United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2000 Decided December 15, 2000
No. 99-3063
United States of America,
Appellee
v.
Winston Delano Weaver,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 92cr00038-01)
Ed Wilhite, appointed by the court, argued the cause and
filed the brief for appellant.
Ryan H. Rainey, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher and Elizabeth Tros-
man, Assistant U.S. Attorneys. Mary-Patrice Brown, Assis-
tant U.S. Attorney, entered an appearance.
Before: Edwards, Chief Judge, Rogers and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Winston Delano Weaver appeals
the denial of his motion under 28 U.S.C. s 2255 to vacate his
conviction because of ineffective assistance of counsel in fail-
ing to obtain information about the three suicide attempts of
a government witness.1 He contends that the district court
erred in denying his motion without an evidentiary hearing to
determine the significance of the attempts and why they had
not been ascertained or disclosed prior to trial. Assuming
that trial counsel's performance was deficient, we hold that,
given the relative unimportance of the witness to Weaver's
conviction, the degree to which the witness was impeached,
and the strength of the government's other evidence, Weaver
has failed to show the requisite prejudice. Accordingly, we
affirm.
I.
The government introduced evidence at Weaver's trial to
show that on four separate occasions he supplied quantities of
cocaine to an undercover officer of the Metropolitan Police
Department. That evidence showed that Weaver supplied
the drugs in response to arrangements made by Antonio
"Hub" Johnson, who was a government informant working
with Officer Dale Sutherland.
The first sale occurred on November 14, 1991. Sutherland
had told Johnson to contact Weaver. Johnson did so and
informed Weaver that Sutherland wanted to buy three ounces
of powder cocaine for $3000. That evening, the three men
met. While Sutherland waited in his truck, Johnson accom-
panied Weaver into a restaurant (near the intersection of 18th
Street and Columbia Road, N.W.) where Weaver retrieved a
__________
1 The district court certified this issue for appeal by Order of
November 10, 1999. See Antiterrorism and Effective Death Penal-
ty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28
U.S.C. s 2253(c)(1)(B) (1996)).
bag containing powder cocaine. Weaver and Johnson re-
turned to Sutherland's truck, Johnson showed the cocaine to
Sutherland, and the three men then left the area. The
second sale occurred on November 21, 1991. Johnson again
asked Weaver to sell Sutherland powder cocaine, this time
four-and-a-half ounces for $3500. The three men met that
afternoon (at the corner of Benning Road and H and Florida
Streets, N.E.) and Johnson accompanied Weaver to a pay
phone nearby, where Weaver telephoned the cocaine supplier.
The supplier stated that he would be ready to make the
exchange in an hour, so the three men reconvened then at the
corner of 18th Street and Columbia Road, N.W., where the
first exchange had taken place. Weaver retrieved the drugs
from the same place as he had before and gave the drugs to
Johnson, who delivered them to Sutherland. Weaver and
Sutherland agreed to continue to do business together. The
third sale occurred on December 18, 1991, when Weaver
retrieved, again from the same area, two ounces of powder
cocaine for Johnson to deliver to Sutherland for $2200.
Weaver was arrested on December 30, 1991 in connection
with a planned fourth undercover sale, which was to take
place in a shopping center parking lot. On this date, Suther-
land negotiated with Weaver, again through Johnson, for the
purchase of eighteen ounces of powder cocaine; the telephon-
ic negotiations were recorded.2 A video camera recorded
__________
2 In the first telephone call, Johnson asked Weaver if he could
get half a kilo and an additional two-and-a-half ounces of cocaine;
Weaver said he would try. At Sutherland's direction, Johnson told
Weaver that he had given Sutherland some of his own money for
the cocaine and, hence, wanted to remain involved in transactions
between Weaver and Sutherland. In a second telephone call,
Weaver suggested that the three men meet at his house, but
Johnson refused, expressing concern over robberies of drug buyers.
In a third telephone call, Sutherland spoke directly to Weaver, who
assured Sutherland that he would find a safe place to make the
exchange; Weaver said he would talk to his supplier about making
the exchange at a local hotel. In the fourth telephone conversation,
the three men agreed to meet in a shopping center parking lot at
the intersection of Alabama and Pennsylvania Avenues, S.E. Al-
parts of the transaction, and several undercover police offi-
cers were positioned in the parking lot for the surveillance
operation.
Before going to the shopping center, Johnson drove Weav-
er to a parking lot (near 46th Street and Fletcher Johnson
High School in Southeast) where Weaver saw his supplier,
Gregory Barnes, in a car with George Denny. Weaver left
Johnson's car and spoke to Barnes. At the same time, Denny
got out of Barnes' car and into the back seat of Johnson's car.
Johnson then drove Weaver and Denny to the Fairfax Village
parking lot, with Barnes following in his car. On the way,
Denny showed Johnson some of the cocaine. After the men
arrived in the shopping center parking lot, Sutherland and
Weaver argued about whether Sutherland would pay first or
Weaver would produce the drugs first. As soon as Suther-
land agreed to produce the money before receiving the drugs,
he opened the hatch of his jeep to get the money, and the
arrest teams, by prearranged signal, moved in to make the
arrests. When Weaver appeared to be getting away, Suther-
land revealed that he was a police officer and placed Weaver
under arrest.
Weaver and Barnes were indicted on four counts in connec-
tion with the events of December 30, 1991.3 At their consoli-
__________
though there were no negotiations as to the purchase price for the
eighteen ounces of powder cocaine at the December 30th sale,
Officer Sutherland testified that he "had assumed [the price] would
be about $14,000."
3 Weaver and Barnes were indicted for conspiracy to distribute
more than fifty grams of a mixture containing cocaine base, in
violation of 21 U.S.C. ss 841(a)(1), 841(b)(1)(A)(iii), and 841(b)(1)(C);
two counts of attempted distribution of a mixture containing cocaine
base within 1000 feet of a school zone, in violation of 21 U.S.C.
ss 846, 860(a) and 18 U.S.C. s 2; and unlawful use of a communica-
tion facility to facilitate the attempted distribution of a mixture
containing cocaine base, in violation of 21 U.S.C. ss 841(a)(1) and
843(b). In addition, on May 28, 1992, Weaver was indicted on seven
counts in connection with his drug distributions on November 14
and 21, and December 18, 1991. Weaver's appeals from his convic-
tions were consolidated by the court.
dated trial, the government called Johnson, Sutherland, and
Denny, among others, as witnesses to testify against Weaver
and Barnes. As relevant to this appeal, Denny testified that
he sold drugs for Barnes, and that on December 30th, he
gave Weaver drugs that Barnes, not Johnson, supplied him.
Weaver testified in his own defense, claiming that although he
had used cocaine for at least twenty years, he had never
before sold it, and that on the four dates in question, he was
paying off a debt to Johnson, who had at one point sold drugs
to Weaver on credit. Weaver had not wanted to sell drugs,
but Johnson told him that Sutherland was "excited about the
purchase." Johnson even coached Weaver on how to act like
a drug dealer. When Weaver tried to back out of the
December 30th sale, Johnson struck him across the face with
a pistol, chipping Weaver's tooth. Weaver testified that he
had never before met Barnes and did not know who he was.
Weaver also presented a witness who testified that Johnson
was selling drugs during the time that he was working with
the police. On April 21, 1992, a jury convicted Weaver on all
counts; a mistrial was declared as to Barnes.
Two years after his conviction was affirmed on appeal, see
United States v. Weaver, 55 F.3d 685 (D.C. Cir. 1995), Weav-
er filed a pro se motion under 28 U.S.C. s 2255 to vacate, set
aside, or correct his sentence on the ground of ineffective
assistance of counsel. As relevant here, Weaver alleged that
trial counsel had failed to obtain information that was avail-
able about Denny's three suicide attempts in the D.C. Jail.4
Weaver argued in his motion that although Denny was a
"scoundrel" and a "hyperfallacious perjuror," trial counsel
failed to impeach him, despite the fact that Denny's suicide
__________
4 In his pro se motion, Weaver also raised claims of prosecutori-
al misconduct and prosecutorial vindictiveness. In reply to the
government's opposition, Weaver claimed that he was entitled to
relief not only because trial counsel failed to obtain information
about Denny's three suicide attempts, but also because trial counsel
failed to seek production of evidence regarding Denny's ownership
of a safe, to impeach Denny for visitation with his fiancee, and to
contact a witness who would have testified that Johnson was selling
drugs while working for the government.
attempts raised questions about his "competency as a wit-
ness." Weaver argued later, through counsel, that the sui-
cide evidence was "probative of the ends to which Mr. Denny
would go to get out of jail."
The district court denied the motion without a hearing.
Relying on United States v. Smith, 77 F.3d 511, 516 (D.C.
Cir. 1996), for the proposition that "only a mental disorder
that would potentially impair a witness' ability or willingness
to tell the truth is enough to make a witness incompetent and,
consequently, a trial unfair," the district court found that
neither Denny's suicide attempts nor any prior mental history
indicated that he suffered from a mental illness that would
prevent him from testifying truthfully. Furthermore, the
court found that Denny had been "extensively cross-
examined" and that "his competency to serve as a witness
was satisfactory."
II.
On appeal, Weaver contends that "[i]n the context of multi-
ple allegations as to the ineffectiveness of [trial] counsel and
prosecutorial misconduct and the apparent multiple suicide
attempts by a key government witness George Denny, the
[district c]ourt [ ] was obligated to conduct a hearing regard-
ing the significance of the attempts and why they had not
been ascertained and/or disclosed prior to trial." Weaver
maintains that it is "logically impossible to determine the
possible impact of a mental illness upon testimony without
knowing what the illness might be," and that Denny's suicide
attempts are "indicative of the desperation of a witness to
escape punishment." Continuing, Weaver maintains that "[a]
distinction should be made between the suicide attempts and
the underlying psychiatric disorder they might indicate."
Finally, he notes that the district court stated in its certifica-
tion of appealability that he had made "a substantial showing
that he was denied his constitutional right to counsel by the
alleged ineffectiveness of counsel in failing to obtain informa-
tion regarding Mr. Denny's three suicide attempts."
Under Strickland, Weaver must demonstrate both that
trial counsel's performance was deficient or unreasonable
under the circumstances, and that the deficient performance
prejudiced the defendant such that there was "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strick-
land v. Washington, 466 U.S. 668, 694 (1984); see also
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). A rea-
sonable probability is "a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694. In
Strickland, the Court labeled relevant findings regarding the
performance and prejudice prongs as mixed questions of law
and fact, see id. at 698; however, "that does not settle what
standard of appellate review is appropriate." United States
v. Askew, 88 F.3d 1065, 1070 (D.C. Cir. 1996). Normally, the
court's review of the district court's findings of fact is "highly
deferential," such that the district court's findings will be
reversed only if they are "clearly erroneous," United States v.
Del Rosario, 902 F.2d 55, 58 (D.C. Cir. 1990) (citing Strick-
land, 466 U.S. at 698 and Fed. R. Civ. P. 52(a)); see also
Pierce v. Underwood, 487 U.S. 552, 558 (1988), while review of
the district court's legal conclusions is de novo. See id.;
United States v. Ahn, 231 F.3d 26, slip op. at 18 (D.C. Cir.
Nov. 14, 2000) (citing United States v. Pollard, 959 F.2d 1011,
1023 (D.C. Cir. 1992)). We need not decide which standard is
appropriate because even on de novo review we find no error.
See Askew, 88 F.3d at 1071.
Section 2255 provides that hearings shall be granted "[u]n-
less the motion and the files and records of the case conclu-
sively show that the prisoner is entitled to no relief." 28
U.S.C. s 2255. When a s 2255 motion involves ineffective
assistance of counsel, a hearing is not required if the district
court determines that the "alleged deficiencies of counsel did
not prejudice the defendant." United States v. Sayan, 968
F.2d 55, 66 (D.C. Cir. 1992) (citing United States v. Patterson,
652 F.2d 1046, 1047-48 (D.C. Cir. 1981)).
The ultimate question is whether, despite the fact that the
evidence presenting Denny's suicide attempts was not pre-
sented to the jury, Weaver received a fair trial, that is "a trial
resulting in a verdict worthy of confidence." Kyles v. Whit-
ley, 514 U.S. 419, 434 (1995). Our disposition of Weaver's
contention that a hearing was required might be different if,
as Weaver asserts on appeal, Denny had been a "key govern-
ment witness" against him. Then, because the nature and
significance of Denny's suicide attempts is not a matter of
record, a hearing might have been in order. Further, be-
cause it is also unclear in the record when information about
the suicide attempts became available to the government and
defense counsel, the matter might need to have been explored
at a hearing. These issues might need to have been explored
if Denny had been a key witness against Weaver because
cross-examination regarding the extent of Denny's willingness
to exculpate Johnson might have demonstrated Denny's lack
of credibility to a greater extent than the defense attacks on
his credibility that the jury, in fact, heard. If Denny had
been a key witness inculpating Weaver, and the government's
evidence was otherwise weak, the jury's evaluation of Weav-
er's coercion defense could have been affected.
In contending that the district court abused its discretion in
summarily denying his motion, Weaver, however, faces a
series of hurdles. As to the performance prong of Strick-
land, the government notes, the district court found, and this
court has recognized, attempted suicide by itself does not
render a witness' testimony less credible. See United States
v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992). Weaver has
not proffered any evidence suggesting that Denny was incom-
petent, much less that Denny could have been impeached by
information relating to his suicide attempts.5 Under the
__________
5 At oral argument, the government advised that during a later
trial, Denny asserted a privilege with respect to the disclosure of
evidence of his suicide attempts; the district court upheld the
privilege. Apparently, the defense did not challenge the assertion
of the privilege. In Smith, the court noted both that "evidence
regarding mental illness is relevant only when it may reasonably
cast doubt on the ability or willingness of a witness to tell the
truth," and that "[f]ederal courts often permit cross-examination
regarding a witness' previous mental history, and may even allow
extrinsic evidence such as hospital records to be used for impeach-
circumstances, having failed to proffer a basis to show that
counsel's performance was deficient, the district court was not
required to hold an evidentiary hearing. See Machibroda v.
United States, 368 U.S. 487, 495 (1962); United States v.
Green, 680 F.2d 183, 184, 189 (D.C. Cir. 1982). But assuming
Weaver has met the performance prong of Strickland, by
showing that information about Denny's suicide attempts was
available for trial counsel to discover and could have been
used to impeach Denny's testimony by showing that he was
so desperate not to testify against Johnson that he would do
and say anything to stay out of jail, Weaver must still
demonstrate a "reasonable probability" that the outcome of
his trial would have been different.6 Strickland, 466 U.S. at
694.
At the outset, Weaver's attempt to show prejudice as a
result of the cumulative effect of alleged errors by trial
counsel and the district court is an attempt to circumvent the
provisions of the Antiterrorism and Effective Death Penalty
Act,7 and this he knows he cannot do. See United States v.
Winston Delano Weaver, 195 F.3d 52, 53 (D.C. Cir. 1995).
Because Weaver did not appeal the district court's certifica-
tion, only his allegation regarding trial counsel's failure to
__________
ment purposes," provided there is a sufficient temporal nexus. 77
F.3d at 516.
6 The district court found that the government disclosed Den-
ny's suicide attempts on May 12, 1992 (after the jury returned its
verdict in Weaver's trial). Weaver points to no evidence that would
have alerted defense counsel to Denny's suicide attempts before
then.
7 The Antiterrorism and Effective Death Penalty Act requires a
defendant to obtain a certificate of appealability from the district
court in order to pursue an appeal, see 28 U.S.C. s 2253(c)(1)(B),
and provides that "[t]he certificate of appealability ... shall indicate
which specific issue or issues satisfy the showing required by
paragraph (2)." Id. s 2253(c)(3) (emphasis added). Paragraph (2)
provides that a certificate of appealability may be issued only if the
defendant makes a "substantial showing of the denial of a constitu-
tional right." Id. s 2253(c)(2).
learn of Denny's suicide attempts is properly before the
court. See id.
Additionally, characterizing Denny as a "key government
witness" against Weaver both misstates the nature of Denny's
role at Weaver's trial and ignores the key eyewitness testimo-
ny against Weaver by informant Johnson and undercover
officer Sutherland, as well as the December 30th video and
telephonic recordings.8 Denny's testimony was, at most,
cumulative with respect to Weaver. Moreover, Weaver's
attempt to distinguish United States v. Moore, 104 F.3d 377
(D.C. Cir. 1997), is unpersuasive. In Moore, the court reject-
ed the defendant's claim of ineffective assistance of trial
counsel because "[e]ven had [trial counsel] located the[ ]
[missing] witnesses, the testimony they allegedly would have
provided was tangential at best," and in light of the strong
evidence against the defendant, any error by counsel would
have been harmless. Id. at 391. Similarly here, the strength
of the government's evidence against Weaver would remain
virtually unchanged had Denny never testified.
To the extent that Denny's suicide attempts could have
further impeached his testimony, the district court could
properly conclude that the extensive cross-examination of
Denny provided the jury with strong grounds to doubt his
credibility. Not only was Denny cross-examined about his
own past drug-selling activities, his possession of weapons, his
assaultive conduct against his girlfriend, and his false state-
ments about his prior criminal conduct to authorities, includ-
ing the trial judge and his probation officer, but the jury also
learned about his agreement to cooperate with the govern-
ment. In closing argument, trial counsel continued to attack
the credibility of the government's witnesses, arguing that
both Johnson's and Denny's necks were on the line and that
they were trying to "work[ ] a beef off for the police, and
__________
8 Even if, as Weaver's counsel argued in closing argument at
trial, the tape recordings were not entirely clear, transcriptions
were made available to the jury. In any event, the recordings
provided some corroboration of the eyewitness' testimony against
Weaver. See supra n.2.
would say anything to Mr. Weaver and do anything to get
Mr. Weaver involved in this transaction."
Because Denny played an insubstantial role with regard to
the evidence against Weaver, the district court properly ruled
that Weaver had failed to meet his burden of showing preju-
dice under Strickland, and that the verdict was "worthy of
confidence."9 Kyles, 514 U.S. at 434. Accordingly, because
Weaver fails to show that the district court abused its discre-
tion in denying his s 2255 motion without an evidentiary
hearing, we affirm the order denying the motion.
__________
9 Weaver's contention that the district court may have failed to
apply the correct prejudice standard is patently meritless. In its
memorandum opinion, the district court set forth Strickland's two-
pronged test and concluded, upon reviewing Weaver's allegations,
that "[trial c]ounsel's performance was not deficient and did not
prejudice [Weaver's] presentation to the jury." See, e.g., Walton v.
Arizona, 497 U.S. 639, 653 (1990).