dissenting:
Trial counsel for appellant, Kenneth Robinson, did essentially these things at trial: he extracted admissions from the government’s two eyewitnesses that they could not identify the shooter of Parris Lynch and that appellant did not match the description of the shooter each had given; he called six witnesses to support appellant’s defense of alibi; he called Curtis Freeman to explain the presence of appellant’s fingerprint near a place on Lynch’s rental car where the eyewitnesses had seen the shooter position himself, and also to testify that when Freeman saw Lynch shortly before the shooting Lynch appeared high on PCP; and he forcefully cross-examined all of the government witnesses, including those who had described appellant’s threats toward Lynch. Thus, in most ways available to him, Robinson conducted the defense diligently and ably.
What he did not do was consult or call as a witness a medical expert (a) to establish that Lynch had PCP in his blood at the time he was shot and, shortly thereafter, made a dying declaration pivotal to the prosecution’s case, and (b) to confirm the possible hallucinating effects of PCP consumption. For me, a close question thus exists of whether, without the distortions of hindsight, Robinson must be held to have constitutionally erred in his judgment — likely born of over-confidence in his ability otherwise to sow reasonable doubt — not to press his client or petition the court for funds to consult and engage a medical expert. The Supreme Court reminded us recently that, while “[c]riminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence, ... [t]here are ... ‘countless ways to provide effective assistance in any given case,’ ” so that “[r]are are the situations in which the ‘wide latitude counsel must have in making tactical decisions’ will be limited to any one technique or approach.” Harrington v. Richter, — U.S. -, -, 181 S.Ct. 770, 788-89, 178 L.Ed.2d 624 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Robinson’s concentration on mounting an alibi defense while discrediting the putative identifications of the prosecution eyewitnesses (and suggesting PCP intoxication through a lay witness and cross-examination of the paramedics) may seem short-sighted in retrospect, but does this mean it fell below the bedrock standard of professionalism reflected in Strickland’s Sixth Amendment test? I find that a hard question to answer, particularly given the limitations Robinson could reasonably foresee, infra, on the help an expert would provide to appellant’s case.1
*660Answering it is unnecessary in my view, however, because I am not persuaded that there is a reasonable probability — and not just the possibility — that expert testimony by Dr. Dretchen (or someone else) about PCP in Lynch’s blood and its possible effects on the reliability of his dying statements would have caused the jury to find a reasonable doubt. The government states, and the court agrees, that “[t]he crucial issue at trial was whether Lynch was actively under the influence of PCP at the time of the shooting,” so that his dying declaration was, as a matter of reasonable doubt, the product of hallucination sometimes associated with that drug. Br. for Appellee at 46 (emphasis added). But, although Dr. Dretchen would have testified that in fact (contrary to the medical examiner, Dr. Titus) Lynch had PCP in his blood at the time and that “[i]t is possible that Mr. Lynch was under the influence of’ PCP (Dretchen Affidavit at 4), Dr. Dretchen could not say how much PCP was in Lynch’s blood or when he had consumed it and thus how long it had been there. See Br. for Appellant at 36 (“[I]t was not possible, based on the available forensic evidence, to determine when Lynch last took PCP or how much was in his blood, and therefore it cannot be known whether he was under the active influence of the drug when he was shot.”). Thus, the most appellant can claim, as his brief candidly states, is that “[i]f the jurors had heard Dr. Dretchen’s testimony, they would have known it was possible that Lynch was on a hallucinogenic drug when he was shot and ... made the putatively damning statements to the paramedics.” Br. for Appellant at 36 (emphasis added). Even with the shortcomings of the government’s eyewitness evidence, it is hard for me to see how this testimony, alone or in the context of the other proof, would have created a reasonable probability of a different outcome.2
Underscoring the relative weakness of the inference Dr. Dretchen would have supported of an active, hallucinatory effect of the PCP on Lynch is the testimony the jury heard from the paramedics who were tending to Lynch when he made the dying statements. Christopher Whittington, who had treated patients high on PCP in the past, remembered that Lynch did not appear high on any kind of drug, although he was “somewhat combative” in the manner of dying patients Whittington had observed who exhibited a “feeling of impending doom.” While “trying to judge [Lynch’s] mental status” for signs of a possible head injury, Whittington asked Lynch simple questions, and the answers suggested that he was “mentally stable.” Lynch looked Whittington “square in the eyes,” said he “need[ed] to tell [him] something,” and stated, “Walter Johnson shot me.” Chris Perkins, also medically trained, confirmed that Lynch had “appealed] coherent” though in respiratory distress and “fighting for life,” and seemed intent on “wanting] to make sure [Perkins] understood what he was telling [him]” when he declared that appellant shot him. Asked if it was ever in his mind *661that Lynch “was on PCP,” Perkins said, “No,” that again he “appeared to be somebody who was fighting for [his] life.” Jurors weighing this testimony against Dr. Dretchen’s opinion, in the abstract, that PCP “produces hallucinations,” and that Lynch’s symptoms of disorientation and combativeness were “consistent with somebody under the influence of PCP” but equally with “somebody who was dying,” could readily have concluded that the one neutralized the other.
Beyond the limitations of what Dr. Dret-chen would have told the jury, moreover, is a singular fact: The putatively hallucinating Lynch named as the shooter the one person who, according to multiple witnesses, had threatened to kill Lynch and showed a continual, indeed obsessive, interest in confronting him over a debt in the weeks and days before the killing. Catrina Stephenson, the mother of Lynch’s children, testified that the formerly friendly relations between Lynch and appellant had turned sour over a drug deal gone bad and appellant’s insistence that Lynch owed him money. Appellant began calling Stephenson about “every other day” stating that “[t]hat motherfucker gonna make me kill him” and “[h]e better get my money.” Latoya Morton, Lynch’s girlfriend, and Dorothy Murrell, Stephenson’s mother, also received harassing and threatening phone calls from appellant. Almost daily in the month before Lynch’s death, appellant would come to Morton’s house looking for Lynch and threatening to start “snatching up kids,” “blowing things up,” and “doin’ things.” Lynch told Morton that the “beef’ was over drugs that were “no good” and appellant’s demand for his money back (some $6,000, according to Morton). Appellant likewise called Mur-rell’s house “constantly,” meaning every day “around the clock,” looking for Lynch “very aggressively].” On the day of the murder, he again phoned her asking for Lynch. After Lynch was killed, the phone calls “stopped.”
The majority finds inconsistencies in this testimony — much as a court might do in rejecting the government’s reliance on motive testimony as adequate to show harmless error. But the burden in these post-conviction proceedings was on appellant, and the combined, mutually reinforcing testimony of these three witnesses could readily have caused the jury to ask, despite Dr. Dretchen’s opinions, how a supposedly hallucinating Lynch just happened to name as his assailant the same person— the only one on this record — with a demonstrated motive to do him serious harm. Of course, we might speculate that Lynch’s preoccupation itself with appellant’s threats to his safety made appellant a “natural” choice for a hallucinating Lynch to name as his shooter. But imputing that kind of psychologizing to the jury is not something for which even Dr. Dretchen offered support.3 And the objectivity of Lynch’s fear of reprisal by appellant for a drug debt was substantiated by (a) the eyewitness Lee Benbow, who heard the shooter say “I want my damned money” before firing multiple shots into Lynch’s car, and (b) Lawrence Brown, who was asked by appellant on the street that day whether he had seen Lynch, after which Brown heard shots fired minutes later and saw Lynch’s car swerve off the road. In short, the hypothesis offered to support reasonable doubt — that only a drug-induced fantasy caused Lynch to name appellant as his shooter — loses much of its force considering that appellant alone on the record had Lynch in his sights.
*662For all of these reasons, I am not convinced that appellant has shown prejudice under Strickland’s second prong, ie., more than a possibility that testimony by Dr. Dretchen would have added enough substance to the defense case to cause reasonable doubt in the jury’s mind.4 And, because appellant cannot overcome the plain error test in arguing separately (as he did not below) that the dying declarations were testimonial under Crawford v. Washington, 541 U.S. 86, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),5 I would affirm the judgments of conviction.
. It is not important that Robinson at the § 23-110 hearing bemoaned his own failure to pursue the expert testimony issue, because
[ajfter an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of *660counsel's performance, not counsel's subjective state of mind.
Harrington, 131 S.Ct. at 790.
. The majority is right, of course, that the defense's job at trial was only to "raise a reasonable doubt in the mind of the jurors," not "establish a probability that Lynch was high on PCP.” Ante at [658], n. 16. But on a post-conviction claim of ineffective assistance, the majority must agree that the defendant's task is the different and more demanding one of establishing "a reasonable probability that [the jury] would have returned with a different [verdict]” but for counsel’s errors. Wiggins v. Smith, 539 U.S. 510, 536, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), quoted ante at [654].
. One might as readily expect few if any limits on a hallucinator’s reveries. Henry James on his deathbed thought he was the late emperor Napoleon.
. Appellant’s other claims of ineffectiveness, as well as the sundry other assignments of error in his pro se submissions, likewise, do not warrant relief.
. Specifically, it is not "clear” or "obvious,” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), that dying declarations as a category or Lynch’s dying statements in particular would be inadmissible under Crawford. See, e.g. Michigan v. Bryant, — U.S. -, -, 131 S.Ct. 1143, 1177, 179 L.Ed.2d 93 (2011) (Ginsburg, J., dissenting).