UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-20191
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSEPH JEROME WILLIS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
November 12, 2001
Before JONES and DeMOSS, Circuit Judges, and LIMBAUGH,1 District
Judge.
DeMOSS, Circuit Judge:
Federal prisoner Joseph Jerome Willis brought the instant 28
U.S.C. § 2255 motion pro se, contending that: (1) his § 924(c)
firearm conviction was invalid; (2) the jury instructions on the
§ 924(c) count were erroneous; (3) Willis’ trial attorney performed
ineffectively in numerous instances; and (4) his appellate counsel
1
District Judge of the Eastern District of Missouri,
sitting by designation.
1
also performed ineffectively by failing to raise several claims on
appeal. A magistrate judge issued a report recommending that
Willis’ § 2255 motion be denied, and the district judge adopted the
magistrate judge’s recommendation. Willis now appeals the denial
of his § 2255 motion.
BACKGROUND
After a 1992 trial, Joseph Jerome Willis was convicted by a
jury of the following offenses: being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g); possession of more
than 5 grams of cocaine base with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1); and using or carrying a firearm
during a drug-trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1). Willis raised four issues on direct appeal regarding:
(1) the admissibility of his prior drug convictions pursuant to
Fed. R. Evid. 404(b); (2) the denial of his motion for a mistrial
based on an unresponsive answer; (3) prosecutorial misconduct
during closing argument; and (4) the sufficiency of the evidence
supporting his § 924(c) firearm conviction. United States v.
Willis, 6 F.3d 257, 259 (5th Cir. 1993). This Court affirmed the
conviction. Id. at 265.
Willis then filed the instant 28 U.S.C. § 2255 motion pro se
contending that: (1) his § 924(c) firearm conviction was invalid;
(2) the jury instructions on the § 924(c) count were erroneous; (3)
Willis’ trial attorney performed ineffectively in numerous
2
instances;2 and (4) his appellate counsel also performed
ineffectively by failing to raise several claims on appeal. The
government filed an answer arguing that all of the claims were
meritless.
The magistrate judge issued a report recommending that the
§ 2255 motion be denied. As to Willis’ claim that he was denied
his constitutional right to testify on his own behalf, the
magistrate concluded that there was no evidence in the record to
support the claim. Additionally, the magistrate judge found that
the claim was procedurally barred because Willis had not raised the
claim on direct appeal and had not met the “cause and prejudice”
test to excuse such failure. As to Willis’ ineffective assistance
of counsel claim, the magistrate judge concluded that the defense
counsel’s decision not to call Willis to testify was a reasoned
trial strategy because Willis had two prior drug-trafficking
convictions about which the government could have cross-examined
him.
After Willis filed objections, the district court adopted the
magistrate judge’s recommendation and dismissed Willis’ § 2255
motion, to which Willis filed for a certificate of appealability
(“COA”). In its final judgment, the district court denied Willis
2
In connection with this claim, Willis asserts that his
counsel had performed ineffectively because he failed to allow
Willis to testify on his own behalf, and that the trial court had
erred by failing to question him sua sponte about whether he was
voluntarily waiving his right to testify.
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a COA, and Willis then filed a motion with this court for a COA.
This Court granted Willis a COA “as to his claim that he was denied
his right to testify on his own behalf at trial” and directed the
parties to brief this issue and to address the degree of
substantiation that is required to trigger an evidentiary hearing
on a 28 U.S.C. § 2255 right-to-testify claim. The court denied COA
as to the other two claims made on appeal and declared that all
other claims had been abandoned.
DISCUSSION
Standard of review
We review the district court’s findings of fact in a § 2255
proceeding for clear error. United States v. Mimms, 43 F.3d 217,
220 (5th Cir. 1995). Questions of law are reviewed de novo.
United States v. Gipson, 985 F.2d 212, 214 (5th Cir. 1993).
The alleged denial of Willis’ right to testify
It is undisputed that Willis did not raise, at trial or on
direct appeal, the allegation that he was denied his right to
testify on his own behalf. This issue is therefore being raised
for the first time in the present § 2255 motion. Usually, after a
conviction and exhaustion or waiver of any right to appeal, this
Court is entitled to presume that the defendant stands fairly and
finally convicted. United States v. Frady, 456 U.S. 152, 164
(1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.
1991). A defendant can challenge a final conviction, but only on
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issues of constitutional or jurisdictional magnitude. Shaid, 937
F.2d at 232 (citing Hill v. United States, 368 U.S. 424, 428
(1962)). The Supreme Court has stated that, in a § 2255
proceeding, “to obtain collateral relief based on trial errors to
which no contemporaneous objection was made, a convicted defendant
must show both (1) ‘cause’ excusing his double procedural default,
and (2) ‘actual prejudice’ resulting from the errors of which he
complains.” Frady, 456 U.S. at 167-68; see also United States v.
Kallestad, 236 F.3d 225, 227 (5th Cir. 2000) (“A section 2255
movant who fails to raise a constitutional or jurisdictional issue
on direct appeal waives the issue for a collateral attack on his
conviction, unless there is cause for the default and prejudice as
a result.”). Willis never raised the denial of right to testify
issue on direct appeal and so it would appear that he is
procedurally barred from raising it now.
However, the government never attempted to invoke the
procedural bar until the present appeal.3 This Court has stated
that in order to raise the procedural bar at the appellate level,
the government must attempt to invoke it in the district court
first. Kallestad, 236 F.3d at 227; United States v. Drobny, 955
3
In the government’s defense, it was not entirely clear
from Willis’ pleadings that he was raising a separate
constitutional claim because he couched the denial of a right to
testify in terms of his ineffective assistance of counsel claim.
It may not have been until the magistrate judge read Willis’
claim broadly (and then dismissed it) that this claim even became
apparent.
5
F.2d 990, 995 (5th Cir. 1992). The government concedes that it is
attempting to affirmatively invoke the procedural bar for the first
time on appeal. It asserts, however, that this is permissible
because the magistrate judge, and the district court by adopting
the magistrate’s findings, raised the procedural bar sua sponte.
The issue of whether a magistrate judge or district court can
invoke the procedural bar sua sponte in a § 2255 case is one of
first impression in this Court. It is not an issue without
guidance, however. In a proceeding involving a 28 U.S.C. § 2254
motion,4 this Court stated that “a federal district court may, in
the exercise of its discretion, raise a habeas petitioner’s
procedural default sua sponte and then apply that default as a bar
to further litigation of petitioner’s claims.” Magouirk v.
Phillips, 144 F.3d 348, 358 (5th Cir. 1998); Smith v. Johnson, 216
F.3d 521, 523-24 (5th Cir. 2000) (raising the procedural bar in a
§ 2254 case sua sponte at the appellate level). When this Court is
considering whether to apply the procedural bar sua sponte in the
§ 2254 context, we consider whether the petitioner has had a
reasonable opportunity to argue against application of the bar, and
whether the government intentionally waived the procedural bar
defense. Smith, 216 F.3d at 524. Though § 2254 and § 2255 are
4
§ 2255 is the postconviction remedy for federal
prisoners that is analogous to, but separate from, the
longstanding federal habeas corpus remedy that was recodified in
§ 2254. See 2 James S. Liebman & Randy Hertz, Federal Habeas
Corpus Practice and Procedure § 41.1, at 1561 (3d ed. 1998).
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analogous, § 2255 does not include a statutorily imposed exhaustion
of remedies requirement. However, we can easily extend our
reasoning in Magouirk and Smith to § 2255 cases because, as we have
already stated, the Supreme Court has engrafted a “procedural bar”
into § 2255 to ensure that such proceedings will not develop into
a substitute for direct appeals. See Frady, 456 U.S. at 167
(imposing the “cause and actual prejudice” standard on motions for
collateral relief when no objection was made on direct appeal); see
also Reed v. Farley, 512 U.S. 339, 354 (1994) (stating that
“[w]here the petitioner - whether a state or federal prisoner -
failed properly to raise his claim on direct review, the writ is
available only if the petitioner establishes ‘cause’ for the waiver
and shows ‘actual prejudice . . ..’”).
We find support for allowing district courts to sua sponte
invoke the procedural bar in § 2255 cases in other circuits as
well. Many of our sister courts have permitted the district courts
to find that the § 2255 motions before them were procedurally
barred, without the government raising the issue, or have even
raised the bar themselves sua sponte. See, e.g., Elzy v. United
States, 205 F.3d 882, 886 (6th Cir. 2000) (noting that it was
proper to raise the default sua sponte at the appellate level in
part because the procedural default was manifest in the record);
Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir. 1998)
(raising the issue of the defendant’s procedural default sua sponte
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at the appellate level); Hines v. United States, 971 F.2d 506, 508
(10th Cir. 1992) (allowing a district court to raise the procedural
default in a § 2255 motion sua sponte, and analogizing it to
§ 2254's procedural default rule). Today we join our sister courts
by extending the reasoning of our decisions in Magouirk and Smith,
and holding that a court may, sua sponte, invoke the procedural
default rule as a bar to § 2255. As the court in Hines noted:
The Frady defense to a § 2255 action, like the
state procedural default defense to a § 2254
action, substantially implicates important concerns
that transcend those of the parties to a case. The
Frady defense is based upon concerns about
finality, docket control, and judicial efficiency.
Hines, 971 F.2d at 508. We note, however, that though a court may
invoke the procedural default sua sponte, it should not do so
lightly. Rosario, 164 F.3d at 733. As this Court stated in Smith,
when considering whether to apply the procedural default rule sua
sponte, “[t]he relevant concerns are whether the petitioner has
been given notice that procedural default will be an issue for
consideration, whether the petitioner has had a reasonable
opportunity to argue against application of the bar, and whether
the State intentionally waived the defense.” Smith, 216 F.3d at
524.
With these concerns in mind, we turn to the present case. As
was already noted, the magistrate’s recommendation to the district
judge raised the issue that the case was procedurally barred. In
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his brief to the district court, Willis argued against the finding
that his case failed on the merits but did not address the
procedural default. The district court then adopted the
magistrate’s findings in full.5 Willis also made no mention of the
default in his brief to this Court, though this may have been due
to the narrow issue on which the COA was granted. However, even if
the COA did not give additional notice to Willis, the government
wisely raised the issue in its brief to this court, thus giving
Willis further notice that his case may have been barred. Willis
still failed to even attempt to argue the procedural default issue
in his reply brief. All of these factors combined lead us to the
conclusion that: (1) Willis was provided ample notice that the
procedural bar was an issue before the court by the magistrate’s
findings and by the government’s brief that adopted the
magistrate’s argument; and (2) Willis was afforded a reasonable
opportunity to argue against application of the bar in his
objections to the magistrate’s findings and in his reply brief to
the government before this Court.6 As was already noted, we do not
5
Though no mention was made specifically of the
procedural bar, the district court stated in its order that it
“concurs fully with the determinations of the memorandum and
recommendation and hereby adopts it as its own.”
6
We note here that these two concerns were satisfied due
to the fact that the magistrate raised the issue and Willis then
had an opportunity to argue against the magistrate’s findings to
the district court. Had the district court raised the issue sua
sponte, and not the magistrate, then Willis would be entitled to
have advance warning that the district court was considering
dismissing the case on such grounds so that Willis could argue
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believe the government intentionally waived this argument because
it was not entirely clear from Willis’ pleadings that he was even
making out a claim that he was denied his right to testify on his
own behalf. The government argued that the issue was procedurally
barred at the first opportunity it had, once it realized the issue
was being raised. It is therefore proper to invoke the procedural
bar. As Willis has made no attempt to argue that there was “cause”
for not raising the issue on direct appeal or that “actual
prejudice” resulted from the errors for which he complains, we need
not consider the issue any further. Willis’ claim that he was
denied his right to testify on his own behalf is procedurally
barred.
The alleged ineffective assistance of counsel
In addition to raising a substantive right-to-testify claim,
Willis alternatively casts the claim in the ineffective assistance
of counsel framework set forth in Strickland v. Washington, 466
U.S. 668 (1984).7 Willis vaguely maintains that his counsel
the “cause and prejudice” prongs.
7
We note that the procedural bar does not apply to
claims that could not have been raised on direct appeal, such as
ineffective assistance of counsel. See, e.g., United States v.
Marroquin, 885 F.2d 1240, 1245-46 (5th Cir. 1989) (noting that a
federal prisoner’s double jeopardy challenge to multiple
sentences would be more properly raised in a § 2255 motion than
on direct appeal). But see Amiel v. United States, 209 F.3d 195,
198 (2d Cir. 2000) (“[A]bsent a showing of cause for the
procedural default and actual prejudice, a defendant may not
raise an ineffective assistance claim for the first time on
collateral attack if the defendant had new counsel on direct
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performed deficiently by failing to call him to testify with
respect to alleged inconsistencies in investigators’ hearing and
trial testimony and that this failure prejudiced him. Willis
asserts that, had he been allowed to testify, he might have been
convicted of only possessing .41 grams of cocaine base instead of
12 grams.
When a defendant argues that his counsel interfered with his
right to testify, “[t]he appropriate vehicle for such claims is a
claim of ineffective assistance of counsel” under Strickland.
Sayre v. Anderson, 238 F.3d 631, 634 & n.2 (5th Cir. 2001) (quoting
United States v. Brown, 217 F.3d 247, 258-59 (5th Cir. 2000)). To
prevail, a petitioner must demonstrate that counsel’s performance
fell below an objective standard of reasonableness, and that such
deficient performance was prejudicial. Strickland, 466 U.S. at
687. When assessing whether an attorney’s performance was
deficient, the court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. Additionally, in order to
show prejudice, a petitioner must demonstrate that counsel’s errors
were “so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id. at 687. “Thus, an analysis
focusing solely on mere outcome determination, without attention to
appeal and the claim is based solely on the record developed at
trial.”).
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whether the result of the proceeding was fundamentally unfair or
reliable, is defective.” Lockhart v. Fretwell, 506 U.S. 364, 369
(1993).
The magistrate judge concluded that this particular
ineffectiveness claim was meritless because allowing Willis to
testify at trial would have permitted the government to cross-
examine him about his drug-trafficking history. The magistrate
judge also made the following findings: (1) Willis’ counsel had
objected strongly to the late production of a police report that
altered the amount of cocaine admitted to by Willis; (2) Willis had
made no showing that he could have offered credible testimony that
would have compelled the trial court to suppress this report; and
(3) the record showed that Willis’ counsel extensively cross-
examined the investigators at the pretrial hearing, and again at
trial, with respect to whether Willis may have been intimidated in
any way.
Willis has not convincingly argued that his testimony would
have assisted him at either the pretrial hearing or at trial.
According to Willis, he would have essentially engaged in a
swearing contest with the investigating officers about what
occurred at the post-arrest interview. Willis does not even
address the viability of the countervailing tactical reasons that
his counsel might have had for declining to call him to the stand,
i.e., the government could have easily attacked Willis’ credibility
12
by using his prior drug convictions. See Fed. R. Evid. 609.
Willis has also failed to demonstrate prejudice. Although he
asserts that, had he testified at trial, he might have been
convicted of only possessing .41 grams instead of 12 grams, he
fails to acknowledge that at sentencing, a district court may
consider relevant conduct, including “all reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B); see also
United States v. Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000). In
other words, even if Willis had credibly testified regarding the
quantity of drugs that were the subject of the post-arrest
interview, the sentencing court could still have found that the 12
grams hidden in his companion’s pants were attributable to Willis
for sentencing purposes. Willis has not demonstrated that he was
prejudiced.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the district court did not err in dismissing
Willis’ § 2255 motion. Willis’ claim that he was denied his right
to testify on his own behalf is procedurally barred and his
ineffective assistance of counsel claim is without merit. We
therefore AFFIRM the district court’s decision.
AFFIRMED.
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