United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 2007 Decided October 9, 2007
No. 05-3129
UNITED STATES OF AMERICA,
APPELLEE
v.
EDDIE J. MATHIS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00334-01)
Jenifer Wicks argued the cause and filed the briefs for
appellant.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese, III, Assistant U.S.
Attorney.
Before: RANDOLPH and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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RANDOLPH, Circuit Judge: A jury convicted Eddie Mathis
of several drug and money laundering offenses, the details of
which are described in our opinion affirming his convictions and
sentence. United States v. Mathis, 216 F.3d 18 (D.C. Cir. 2000).
This is an appeal from the district court’s denial of Mathis’s
motion, pursuant to 28 U.S.C. § 2255, to set aside his
convictions on the grounds that he was deprived of the effective
assistance of counsel and that the government knowingly offered
perjured testimony against him.
Mathis distributed heroin and cocaine in the Washington,
D.C. area and laundered the proceeds. After his arraignment,
the government offered him a sentence of 262 to 327 months in
return for his plea of guilty to two charges: participating in a
drug conspiracy and a conspiracy to launder money. Without
doing any research, Mathis’s attorney assumed that his client
was a “career offender” assigned to criminal history category VI
under § 4B1.1 of the Sentencing Guidelines, and told him that
if he were convicted at trial he would not receive a significantly
higher sentence than the government offered in the plea deal.
According to Mathis, he relied on his attorney and rejected the
government’s offer. After the jury returned its guilty verdicts,
the court assigned Mathis to criminal history category III – not
category VI, as Mathis’s attorney had assumed. Finding that
Mathis’s offense level was 36, the court sentenced him to 293
months in prison – the maximum sentence for a category III
offender at that offense level. U.S.S.G. ch. 5, pt. A.
Mathis’s first claim arises from his attorney’s failure to
calculate his criminal history category. His attorney was
ineffective, he argues, because he did not evaluate whether
Mathis fell within criminal history category VI. And he suffered
prejudice because, had his attorney performed properly, the
attorney would have discovered that Mathis fell within category
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III and could have persuaded the government to offer a sweeter
deal.
Deficient performance and prejudice, the two prerequisites
for a successful Sixth Amendment claim, are often mixed
questions of law and fact. See Strickland v. Washington, 466
U.S. 668, 687, 698 (1984). Whatever the ultimate standard of
review might be for these questions, see United States v. Toms,
396 F.3d 427, 432-33 (D.C. Cir. 2005), the district court’s
factual findings made in the course of judging an ineffective
assistance of counsel claim may be set aside only if clearly
erroneous, as Strickland recognized, 466 U.S. at 698 (citing
Rule 52(a) of the Federal Rules of Civil Procedure). See United
States v. Askew, 88 F.3d 1065, 1070 (D.C. Cir. 1996); Adams v.
Jago, 703 F.2d 978, 980 (6th Cir. 1983); Washington v. Watkins,
655 F.2d 1346, 1354 (5th Cir. 1981).
We shall assume that the performance of Mathis’s trial
attorney was deficient. The district court so ruled and the
government does not contest that ruling. To establish prejudice,
Mathis must also prove “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. We have noticed before
that using “reasonable” probability in this context “may lead us
in a circle: one cannot be confident of the outcome when there
is a ‘reasonable’ probability that it may be wrong, and a
‘reasonable’ probability is one high enough to undermine
confidence in the outcome.” United States v. Bowie, 198 F.3d
905, 909 (D.C. Cir. 1999). Despite this difficulty, we can be
sure – in light of a factual finding of the district court – that
Mathis would not have obtained a shorter sentence even if his
attorney had correctly computed his criminal history category.
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At the § 2255 hearing, the prosecutor testified that he
offered a sentencing range of 262 to 327 months independent of
any determination the court might make about Mathis’s offense
level or criminal history category. Responding to a question
about Mathis’s desire for a sentence of ten to fifteen years, the
prosecutor stated that the government would have proceeded to
trial rather than agree to such a sentence. The district court
credited the prosecutor’s testimony and found that Mathis would
not have gotten a better deal even if his attorney had done an
accurate computation.
If Mathis had pleaded to the indictment, which would have
reduced his offense level under § 3E1.1 of the Guidelines, he
would have done so without knowing the amount of drugs for
which he would be held responsible. When the government
proposed its plea agreement, Mathis’s indictment contained two
counts on which he was later acquitted and two counts not
submitted to the jury, all of which involved possession with
intent to distribute heroin or cocaine. As a result, it is
conceivable that pleading to the indictment would have
increased his sentence.
Because Mathis’s speculation regarding a more favorable
plea agreement does not undermine our confidence in the
outcome of his prosecution, Mathis’s claim fails the Strickland
test. In United States v. Gaviria, we held that to succeed on a
claim of ineffective assistance arising from plea negotiations,
the defendant had to show that he would have accepted the
government’s plea offer had his attorney advised him correctly
about his criminal history category. 116 F.3d 1498, 1514 (D.C.
Cir. 1997). We remanded to determine the probability that the
defendant could have and would have taken the offer. Id. In
United States v. Day, on which Mathis relies, the defendant
claimed that he would have taken an alleged plea offer had he
known that he would be sentenced as a career offender. 969
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F.2d 39, 40 (3d Cir. 1992). The Third Circuit remanded to
determine whether the alleged plea offer existed. Id. at 44, 48.
In both cases, the court of appeal recognized that the
government’s negotiating strategy was a question of fact for the
district court. Here, the district court held an evidentiary hearing
and found that the government was not willing to offer Mathis
a more favorable plea. That finding was not clearly erroneous.
Because Mathis failed to show prejudice, the district court
correctly refused to set aside his convictions.
Mathis also claims that his convictions should be vacated
in view of the prosecution’s introduction of perjured testimony.
Eugene Matthews testified for the government that Mathis sold
him drugs regularly from late 1987 to 1989. This could not have
been accurate. Mathis was incarcerated from January 1987 to
April 1988. On cross-examination, Mathis’s attorney
challenged Matthews’s testimony on this basis and got him to
admit that he might have been “mistaken about the time frame.”
Mathis should have raised his perjured testimony claim on
direct appeal. See Bousley v. United States, 523 U.S. 614, 621
(1998). To overcome his default,1 he must show cause for, and
prejudice from, his failure to raise the claim earlier. Id. at 622.
Mathis does neither. Although ineffective assistance of counsel
constitutes cause, Coleman v. Thompson, 501 U.S. 722, 753-54
(1991), Mathis’s appellate attorney was not constitutionally
ineffective. The attorney reviewed the record with care and
1
A defendant is permitted to bring an ineffective assistance
claim for the first time in his § 2255 hearing, Massaro v. United
States, 538 U.S. 500, 508-09 (2003), even though our court would
permit him to raise the claim in his direct appeal, United States v.
Weaver, 281 F.3d 228, 233-34 (D.C. Cir. 2002); United States v.
Geraldo, 271 F.3d 1112, 1115-16 (D.C. Cir. 2001).
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decided that the issue was not worth pursuing because Matthews
may simply have been mistaken and because the record did not
suggest that the government had intentionally offered false
testimony. Since Mathis’s claim lacked evidentiary support and
since his trial attorney effectively countered Matthews’s
testimony, appellate counsel’s failure to raise the claim did not
prejudice Mathis.
Affirmed.