United States v. Higgs

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 10-7
DUSTIN JOHN HIGGS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge.
(8:98-cr-00520-PJM-2; 8:05-cv-03180-PJM)

Argued: September 21, 2011

Decided: November 23, 2011

Before TRAXLER, Chief Judge, and SHEDD and
KEENAN, Circuit Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Shedd and Judge Keenan joined.

COUNSEL

ARGUED: Angela Elleman, FEDERAL COMMUNITY
DEFENDER OFFICE, Philadelphia, Pennsylvania, for Appel-
lant. Sandra Wilkinson, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON
2 UNITED STATES v. HIGGS
BRIEF: Leigh Skipper, Chief Federal Defender, Matthew
Lawry, Michael Wiseman, Assistant Federal Defenders, FED-
ERAL COMMUNITY DEFENDER OFFICE, Philadelphia,
Pennsylvania; Stephen H. Sachs, WILMER CUTLER PICK-
ERING HALE & DORR, Baltimore, Maryland, for Appel-
lant. Rod J. Rosenstein, United States Attorney, Deborah
Johnston, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.

OPINION

TRAXLER, Chief Judge:

Petitioner Dustin John Higgs was convicted of three counts
each of first-degree premeditated murder, see 18 U.S.C.
§ 1111(a), first-degree murder committed in the perpetration
or attempted perpetration of a kidnapping, see id., and kidnap-
ping resulting in death, see 18 U.S.C. § 1201(a)(2), arising out
of the January 27, 1996, murders of three young women in the
Patuxent National Wildlife Refuge. He received nine death
sentences. We affirmed his convictions and sentences. See
United States v. Higgs, 353 F.3d 281 (4th Cir. 2003) ("Higgs
I"). Higgs also filed a motion for a new trial, which was
denied by the district court and affirmed on appeal. See
United States v. Higgs, 95 Fed. App’x. 37 (4th Cir. 2004)
("Higgs II").

Presently before us is Higgs’s motion for relief under 28
U.S.C. § 2255, which was denied by the district court. See
Higgs v. United States, 711 F. Supp. 2d 479 (D. Md. 2010).
We granted a certificate of appealability to consider Higgs’s
claim that his constitutional rights to due process of law and
effective assistance of counsel were violated by the introduc-
tion of Comparative Bullet Lead Analysis ("CBLA") evidence
at trial. We now affirm.
 UNITED STATES v. HIGGS 3
I.

The facts in this case have been well-documented in the
two prior opinions of this court, from which we borrow heav-
ily.

At approximately 4:30 a.m., on January 27, 1996, Tanji
Jackson, Tamika Black, and Mishann Chinn were found dead
in a roadway in the Patuxent National Wildlife Refuge in
Prince George’s County, Maryland. Jackson and Black had
each been shot once in the chest and once in the back. Chinn
had been shot once in the back of her head. A .38 caliber wad-
cutter bullet was found at the scene. Jackson’s day planner
was also found, in which she had written Higgs’s nickname
and telephone number. On a separate page, Jackson had also
recorded the notation "13801 ‘MAZDA’ 769GRY," which
matched Higgs’s address number on Briarwood Drive in Lau-
rel, Maryland, and the license tag number for Higgs’s blue
Mazda MPV van. Higgs I, 353 F.3d at 291 (internal quotation
marks omitted). Chinn’s mother and a friend of the Jackson
family each confirmed that the girls had been picked up for
dates the previous evening by a man or men in a blue Mazda
MPV van. There were additional witnesses who saw the
women at Higgs’s apartment complex during the early morn-
ing hours of the murders.

On March 21, 1996, Park Police Officers interviewed
Higgs at his apartment. Higgs admitted that he knew Jackson
and that he may have spoken to her on the night before her
murder but denied that she had ever been at his apartment and
denied knowing where she lived. Higgs claimed that he first
heard about the murders on January 27, 1996, while watching
the ten o’clock news at the home of his girlfriend, Phyllis
Smith, and that he commented to a guest at Smith’s home that
evening that he thought he knew "‘that Tanji girl.’" Id. The
names and photographs of the victims, however, had not yet
been released. During the search of Higgs’s apartment, the
police found cash, crack cocaine, a .380 semiautomatic fire-
4 UNITED STATES v. HIGGS
arm, and ammunition for .380, .45, and .38 caliber weapons.
Higgs was arrested on federal drug charges, pled guilty, and
was sentenced to seventeen years in prison.

In the fall of 1998, Victor Gloria was arrested on federal
drug charges. Gloria admitted to authorities that he was with
Higgs and Willis Mark Haynes on the night of the murders
and agreed to cooperate with the authorities in the murder
prosecutions. At trial, he provided a detailed, eyewitness
account of the kidnappings and murders, which we summa-
rized as follows:

On Friday evening, January 26, 1996, Higgs, Wil-
lie Mark Haynes and Victor Gloria drove from
Higgs’s apartment at 13801 Briarwood Drive in Lau-
rel, Maryland, to Washington D.C. to pick up [Jack-
son, Black, and Chinn]. Higgs knew Jackson and
they had arranged dates for Haynes and Gloria with
Black and Chinn. They were traveling in Higgs’s
blue Mazda MPV van. After stopping at a liquor
store, the three couples returned to Higgs’s apart-
ment to drink alcohol and listen to music. While
there, the men also smoked marijuana.

At some point during the early morning hours of
January 27, Higgs and Jackson began to argue. Jack-
son retrieved a knife from the kitchen and Haynes,
who had been in the bedroom with Black, heard the
commotion and came out to break up the fight.
Haynes talked to Jackson and got the knife away
from her. However, Jackson was still angry and the
three women left the apartment. According to Gloria,
as Jackson was walking out, "[s]he stopped at the
door and said something like I am going to get you
all f–––ed up or robbed" or made "some kind of
threat." In response, Higgs commented to the other
two men that Jackson "do know a lot of n–––––s."
As Higgs was watching the women leave, he saw
 UNITED STATES v. HIGGS 5
Jackson stop and appear to write down the license
plate number of his van. This angered Higgs, who
commented to Haynes and Gloria that Jackson was
"writing down [his] sh––." Gloria interpreted
Higgs’s comments as concern that Jackson intended
to retaliate against Higgs.

At that point, "Higgs said f––– that, and grabbed
his coat and said come on." He also retrieved a silver
.38 caliber firearm from the end table drawer and put
it in his pocket. The three men got into Higgs’s van,
with Higgs driving, Haynes in the front passenger
seat, and Gloria sitting behind Higgs. Higgs drove
the van to where the three women were walking on
the side of the road and told Haynes to get them in
the vehicle. After Haynes spoke to them, the three
women got into the back seat of the vehicle and
Higgs started driving towards Washington, D.C.
Neighbors in the area heard and saw the three girls
laughing and talking around 3:30 that morning.

According to Gloria, while en route to Washing-
ton, D.C., Higgs and Haynes leaned towards each
other and engaged in a quiet conversation that Gloria
could not hear. The women were whispering in the
back of the van and apparently believed they were
being taken home. Higgs, however, drove past the
Baltimore–Washington Parkway exit, which would
have taken them directly into Washington, D.C., and
instead drove the van into the Patuxent National
Wildlife Refuge, a federal property within the juris-
diction of the United States Park Police. Eventually,
Higgs pulled over at a secluded location. One of the
girls asked if they were trying to "make [them] walk
from [t]here," and Higgs responded, "something like
that." After the women got out of the van, Higgs
pulled out the pistol and handed it to Haynes, who
put it behind his back and also exited the van. Within
6 UNITED STATES v. HIGGS
moments, Gloria heard a gunshot and wiped the mist
off the back window in time to see Haynes shoot one
of the women in the chest. Gloria turned to ask
Higgs what he was doing, but saw Higgs holding the
steering wheel and watching the shootings from the
rearview mirror. Gloria put his head down, heard
more shots, and heard a woman screaming.

After firing a few more shots, Haynes got into the
van and closed the door. According to Gloria, either
Higgs or Haynes then commented that they had to
"get rid of the gun," and Higgs drove to the Anacos-
tia River where, according to Gloria, either Higgs or
Haynes got out and threw the gun into the water.
Higgs then drove back to his apartment where the
three men began to clean up. Among other things,
they wiped down the patio doors and "everything
else, the bathroom, the doorknobs, the stereo," and
threw away any items the women might have
touched, such as liquor bottles, CDs, and rented vid-
eotapes. The men then left the apartment and
dropped the trash by a dumpster. Higgs and Haynes
dropped Gloria off at a fast food restaurant, where he
was told by Higgs to "keep [his] mouth shut."

Higgs I, 353 F.3d at 289-90 (footnote and citations omitted).

At trial, Higgs’s counsel did not challenge the govern-
ment’s evidence that Higgs knew Jackson prior to the mur-
ders, that the women were present at Higgs’s apartment
complex that evening, or that Haynes was the triggerman.
Rather, Higgs’s counsel argued that the government had
failed to prove that Higgs was a principal in the kidnappings
and murders. See 18 U.S.C. § 2 ("Whoever commits an
offense against the United States or aids, abets, counsels,
commands, induces or procures its commission," or who
"willfully causes an act to be done which if directly per-
formed by him or another would be an offense against the
 UNITED STATES v. HIGGS 7
United States, is punishable as a principal."). In particular,
Higgs challenged the government’s evidence that he had been
in prior possession of a .38 caliber weapon and that he handed
the .38 caliber murder weapon to Haynes that night to carry
out the murders.1

The government presented overwhelming evidence of
Higgs’s guilt, as well as of his predominant role in the mur-
ders. Although Gloria was an important witness for the gov-
ernment, substantial additional testimony and evidence
corroborated Gloria’s testimony. Of particular note was Jack-
son’s day planner and its references to Higgs’s identifying
information, which corroborated Gloria’s testimony that
Higgs commented that Jackson was "‘writing down [his]
sh—,’" just after his violent argument with Jackson and just
prior to his retrieving his gun and pursuing the women. Higgs
I, 353 F.3d at 290 (alteration in original).

In addition, Higgs made a number of incriminating state-
ments after the murders. Phyllis Smith testified that Higgs had
her tell the authorities that he was with her at the time of the
murders; however, she recanted when she learned that the
alibi was for the murders instead of drug charges. Similarly,
Ednisia Darby, the mother of Higgs’s child, testified that
when she asked Higgs about the murders, he made an effort
to remind her that they were together at the hospital that eve-
ning, which was not true. Darby testified that Higgs later
admitted that he was with Haynes when the women were mur-
dered. He also told Darby that Jackson had been invited over
to his apartment that night because she had been "‘snitching
1
Higgs and Haynes were jointly indicted for the kidnappings and mur-
ders in December 1998. Haynes was convicted of the murders several
months before Higgs’s trial, but the jury did not recommend the death
penalty for Haynes. At Haynes’s trial, defense counsel also admitted that
Haynes was the triggerman but argued "that Haynes’ actions were not
truly voluntary because he was effectively controlled by his older, domi-
nant co-defendant, Dustin John Higgs." Haynes v. United States, 451 F.
Supp. 2d 713, 717 (D. Md. 2006).
8 UNITED STATES v. HIGGS
on one of them,’" and that "‘the other two girls . . . were just
for his friends.’" Id. at 292.

Higgs also discussed matters with Domenick Williams, a
fellow inmate and jailhouse lawyer who was housed with
Higgs at the D.C. jail between August 1998 and January
1999. When Higgs told Williams that he had refused to coop-
erate against Haynes in the murder investigation, Williams
told Higgs that the authorities would likely offer Haynes the
same deal. In response, "Higgs told Williams ‘that his youn-
gan would hold up,’ and ‘that the government wouldn’t offer
a deal to the trigger man.’" Id. at 293 (citation omitted). Wil-
liams also related conversations that he had with Higgs about
Gloria. Higgs asked Williams what his chances of defeating
the murder charges "would be ‘if the witness after the fact
wasn’t there.’" Id. Williams told Higgs "that ‘his chances
would be good.’" Id. Higgs later told Williams "‘that he
wasn’t worrying about the [murder] case’" because two of the
former inmates at the jail, Melvin Grayson and T, "‘would be
out there,’" and "‘[t]hat Mel would be out there to handle any-
thing that he needed and that he could rely on him.’" Id.
(alteration in original). Concerned that a conspiracy to harm
Gloria might be in the works and that he might be implicated,
Williams reported these conversations to the authorities. Wil-
liams also produced letters that Higgs had written to him,
which stated "that Higgs had not heard from ‘T’, but that ‘Mel
has been in my corner.’" Id. Visitation records confirmed that
Grayson visited Higgs in the D.C. jail in February and March
of 1999.

The government also introduced evidence of a taped tele-
phone conversation between Higgs and Grayson in May 2000.
During the conversation, Higgs and Grayson discussed
Haynes’s conviction for the murders and Higgs told Grayson
that the attorney had "‘got[ten] the whole joint twisted.’" Id.
at 309. When Grayson subsequently read Higgs a newspaper
article reporting that Haynes had claimed that he shot the
women only because he was afraid of Higgs, Higgs made no
 UNITED STATES v. HIGGS 9
response at all. Later, Higgs told Grayson that the lawyers
were trying to make it seem like the murders were over some-
thing petty. Thus, Higgs made no attempt to refute his
involvement in the crimes during his conversation with Gray-
son and instead implied that the authorities were mistaken
about the motive.

As noted above, Gloria testified that either Higgs or Haynes
disposed of the murder weapon in a nearby river while en
route back to Higgs’s apartment. The authorities never found
the .38 caliber murder weapon.2 However, the government
presented evidence that Higgs was involved in two other
shootings during the two-month period leading up to the mur-
ders, both of which involved a .38 caliber handgun.

The first shooting was on November 20, 1995, at the Cha-
conia Nightclub in Washington, D.C. Wondwossen Kabtamu
testified that Higgs got into an argument outside the club, and
that Higgs shot out the windows of a vehicle in a drive-by
shooting while Kabtamu drove Higgs’s Mazda MPV van.
Kabtamu threw the gun out of the window shortly afterwards,
but Higgs insisted that they return to get it. A .38 caliber bul-
let was recovered by the police from the vehicle targeted by
Higgs. Williams testified that Higgs also discussed the Cha-
conia shooting with him, and that Higgs said that he could not
plead guilty to the Chaconia charge because the authorities
would try to use the gun in another case. When Williams
learned that Higgs was being indicted for the triple murders,
"Higgs commented to Williams, "‘you see why I can’t plead
guilty to that charge?’" Id. at 293.

The second shooting was on December 10, 1995, on Cherry
2
During the sentencing phase, portions of Haynes’s statements to the
authorities were admitted, further corroborating Gloria’s account of the
events that occurred that evening. Haynes confirmed that Higgs was driv-
ing the van that night. In addition, Haynes advised the authorities that he
threw the gun in the river.
10 UNITED STATES v. HIGGS
Lane in Laurel, Maryland. This shooting involved both Higgs
and Haynes. Rodney Simms testified that Haynes came to his
home and began arguing with him. During the argument,
Haynes pulled a gun and began shooting at Simms from the
front of the house. Higgs came out from a nearby shed and
also began shooting. Police recovered 9mm bullet casings
from the front of the house, where the eyewitnesses placed
Haynes, and a .38 caliber bullet from inside the house. In
April 1997, Higgs pled guilty to his involvement in the
Cherry Lane shooting. During the plea proceedings, the prose-
cutor stated that Haynes had fired the 9mm handgun and that
Higgs had fired the .38 caliber handgun. Higgs offered no
contest to his involvement in the shooting but claimed that he
had fired the 9mm handgun and that Haynes had fired the .38
caliber handgun.

Finally, the government presented two categories of foren-
sic evidence to corroborate the eyewitness testimony and
crime scene evidence from the murder scene and the two prior
shootings. The government presented experts in the area of
firearms examination, comparison, and identification, who
testified that the .38 caliber bullets recovered from the Cha-
conia shooting, the Cherry Lane shooting, and the murders all
shared the same rifling characteristics. As we previously
explained in Higgs I,

"lands and grooves" refer to the rifling marks that
are "pressed onto a bullet when it travels down a bar-
rel of a firearm. Because "[d]ifferent manufacturers
will have different numbers of lands and grooves,
different directions of twist, right or left, and differ-
ent sizes," the marks allow forensic investigators to
compare firearms with fired bullets and cartridge
cases, and to compare fired bullets and cartridge
cases from different crime scenes to one another.

Id. (citations omitted, alteration in original). The .38 caliber
bullets recovered from the three crime scenes were all fired
from a firearm with five lands and grooves with a right twist.
 UNITED STATES v. HIGGS 11
The government also presented CBLA evidence through
the testimony of Kathleen Lundy, an examiner with the Ele-
mental Analysis Group of the FBI laboratory. Lundy com-
pared the elemental composition of the .38 caliber bullets
recovered from the three crime scenes and from Higgs’s
apartment. According to Lundy, the lead composition of the
.38 caliber bullet recovered from the Chaconia shooting
matched the lead composition of eighteen of the .38 caliber
bullets found at Higgs’s apartment. In addition, the lead com-
position of the .38 caliber bullet recovered from the Cherry
Lane crime scene matched the lead composition of the .38
caliber bullet recovered from the murder scene.

II.

Higgs contends that his due process rights under Brady v.
Maryland, 373 U.S. 83 (1963), were violated by the govern-
ment’s failure to produce two reports that he asserts could
have been used to either exclude or further impeach the
CBLA evidence presented by Lundy. In the alternative, Higgs
contends that his trial counsel were constitutionally ineffec-
tive under Strickland v. Washington, 466 U.S. 668 (1984),
because they failed to discover the reports on their own or
present comparable and available expert testimony to chal-
lenge the CBLA evidence. He contends that his post-trial
counsel were also ineffective because they failed to file a
motion for a new trial on the basis of newly discovered
studies on CBLA evidence.

A.

Under the Due Process Clause, the prosecution is required
to disclose evidence favorable to an accused upon request,
"where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of the prose-
cution." Brady, 373 U.S. at 87. To prevail on a Brady claim,
the defendant must demonstrate (1) that the evidence is favor-
able, either because it is exculpatory or impeaching; (2) that
12 UNITED STATES v. HIGGS
the government suppressed the evidence; and (3) that the evi-
dence was material to the defense. See Strickler v. Greene,
527 U.S. 263, 281-82 (1999); Giglio v. United States, 405
U.S. 150, 154-55 (1972) (including impeachment evidence
within the scope of materials that the prosecution must dis-
close).

The duty to disclose favorable evidence, however, does not
require the government to make available all evidence in its
possession or within its reach. Nor does the mere suppression
of favorable evidence entitle the defendant to relief. See Kyles
v. Whitley, 514 U.S. 419, 437 (1995). There is no Brady viola-
tion if the evidence is available to the defense from other
sources or the defense already possesses the evidence. See
United States v. Roane, 378 F.3d 382, 402 (4th Cir. 2004);
Fullwood v. Lee, 290 F.3d 663, 686 (4th Cir. 2002) ("The
Brady rule does not compel the disclosure of evidence avail-
able to the defendant from other sources, including diligent
investigation by the defense." (internal quotation marks omit-
ted)). And, while "the term ‘Brady violation’ is sometimes
used to refer to any breach of the broad obligation to disclose
exculpatory [or impeachment] evidence . . . , strictly speaking,
there is never a real ‘Brady violation’ unless the nondisclo-
sure was so serious that there is a reasonable probability that
the suppressed evidence would have produced a different ver-
dict." Strickler, 527 U.S. at 281; see also United States v.
Bagley, 473 U.S. 667, 677 (1985) (Supreme Court precedent
does not "automatically require a new trial whenever a comb-
ing of the prosecutors’ files after the trial has disclosed evi-
dence possibly useful to the defense but not likely to have
changed the verdict." (internal quotation marks omitted)). A
"reasonable probability" of a different result is shown "when
the government’s evidentiary suppression ‘undermines confi-
dence in the outcome of the trial.’" Kyles, 514 U.S. at 434
(quoting Bagley, 473 U.S. at 678).

B.

To succeed on a Sixth Amendment claim of ineffective
assistance of counsel, the defendant must satisfy the two-
 UNITED STATES v. HIGGS 13
prong test set forth in Strickland. The defendant must demon-
strate that defense counsel’s performance "fell below an
objective standard of reasonableness" measured by "prevail-
ing professional norms," Strickland, 466 U.S. at 688, and that
the "deficient performance prejudiced [his] defense," id. at
687. The standard for Strickland prejudice is the same as for
Brady materiality. See id.; Kyles, 514 U.S. at 434; Tice v.
Johnson, 647 F.3d 87, 110 (4th Cir. 2011). The defendant
must show that "there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different," Strickland, 466 U.S. at 694, or
that counsel’s errors were so serious as to deprive the defen-
dant of a fair trial, a trial whose result is reliable," id. at 687.

III.

In order to properly evaluate Higgs’s challenges to the
CBLA evidence in the context of his Brady and Strickland
claims, we begin with some background on CBLA evidence
and the developments that took place before and after Higgs’s
trial.

A. The Pre-Trial Reports

From the late 1960s until at least 2004, CBLA was per-
formed by the FBI to compare bullets found at or associated
with a crime scene to bullets associated with a defendant, usu-
ally in cases where a fired bullet could not be matched to a
particular firearm because the firearm was not recovered or
the fired bullets were too mutilated for comparison of physi-
cal markings. CBLA evidence, when introduced at trial, gen-
erally consisted of two components: (1) the scientific test used
to measure the elemental composition of the lead in bullets;
and (2) the conclusions drawn by the examiner based upon the
similarities or differences in the elemental compositions of the
compared bullets.

The primary source of bullet lead is recycled car batteries.
Secondary lead smelters melt and mix the lead with smaller
14 UNITED STATES v. HIGGS
lead sources and other chemicals in large vats, and these
smelters then harden the lead into a solid form suitable for
sale to bullet manufacturers. The manufacturers, in turn, pro-
cess the lead into bullets. Due to impurities in the source
material and the changes that are made to it, the elemental
composition of lead melts varies. Bullets that share the same
elemental composition were deemed by CBLA examiners to
be analytically indistinguishable, creating the inference that
the compared bullets originated from the same lead melt.

The first document at issue in this case derives from a pre-
sentation at an FBI conference in 1991 (the "FBI Report"),
reporting that CBLA matches had been found in bullets taken
from boxes manufactured seven months apart and fifteen
months apart. Higgs claims that this report should have been
disclosed to him because it raised a question as to whether
lead melts are unique in their elemental compositions.

The second document at issue is a May 2000 study per-
formed by the Iowa State University Department of Statistics
and Ames Laboratory (the "Iowa State Study"). This study
was performed at the request of the FBI, with the goal of "de-
velop[ing] a means for assessing bullet evidence, especially to
be able to quantify the significance of matching bullet lead."
J.A. 522. The available data necessary to do so, however, was
felt to be insufficient and additional study was deemed neces-
sary. The study specifically suggested that further research be
done on bullet manufacturing, distribution, and usage, noting
that "[b]ullets manufactured from different batches of raw
material may end up in the same box of bullets; similarly bul-
lets manufactured from the same batch can end up in different
boxes" and that it had "been difficult from the limited data
available to estimate the relative frequency of these events."
J.A. 522. Higgs contends that this study should also have been
disclosed to him because it called into question the premise
that lead melts are unique and homogeneous in their elemen-
tal compositions.
 UNITED STATES v. HIGGS 15
B. The Post-trial Reports

Higgs’s trial was completed in October 2000. In the ensu-
ing years, the FBI and the scientific community collaborated
their efforts to quantify the significance of bullet lead matches
from CBLA. See Clemons v. Maryland, 896 A.2d 1059, 1076-
78 (Md. 2006) (discussing the various studies released in
2002 that questioned the value of CBLA evidence and recom-
mended further study of the issue). At the request of the FBI,
the National Research Council ("NRC") of the National Acad-
emy of Sciences undertook a study of the issue and, in 2004,
released its recommendations in a report entitled "Forensic
Analysis: Weighing Bullet Lead Evidence." J.A. 491 (internal
quotation marks omitted). The NRC reported that "the FBI
Laboratory’s analytical instrumentation is appropriate and the
best available technology with respect to precision and accu-
racy for the elements analyzed" and "that the elements
selected by the FBI for this analysis are appropriate." J.A.
491. However, "[t]he NRC expressed concerns . . . relating to
the interpretation of the results of bullet lead examinations."
J.A. 491. "Although the NRC stated that the FBI Laboratory
did not need to suspend bullet lead examinations while under-
taking [its] review [of the recommendations], the FBI elected
to do so while the review was pending." J.A. 491. On Septem-
ber 1, 2005, the FBI announced that it would no longer per-
form CBLA because "neither scientists nor bullet
manufacturers [had been] able to definitively attest to the sig-
nificance of an association made between bullets in the course
of a bullet lead examination." J.A. 491. Prior to doing so,
however, "the FBI Laboratory ha[d] not determined that pre-
viously issued bullet lead reports were in error." J.A. 492.

Because Higgs’s convictions and sentences were imposed
prior to these additional studies and the FBI’s response, Higgs
claims that his defense counsel were also ineffective post-trial
for failing to investigate and present the ongoing develop-
ments in a motion for a new trial under Rule 33 of the Federal
Rules of Criminal Procedure.
16 UNITED STATES v. HIGGS
IV.

Higgs claims that the FBI Study and Iowa State Study, both
of which were in existence at the time of his trial, were inter-
nal studies performed by or at the request of the FBI and,
therefore, were not reasonably available to trial counsel.
Accordingly, he asserts that the government violated its Brady
obligations by failing to produce them. In the alternative,
Higgs contends that his trial counsel were constitutionally
ineffective for failing to independently discover the studies, or
present comparable impeachment material that was reason-
ably available in the public domain through an expert. See
Brief of Appellant at 41 (arguing that "[e]ven without the
information withheld by the [g]overnment, reasonable counsel
would still have had much at their disposal to exclude CBLA,
impeach Lundy or persuade the jury that her testimony lacked
probative value").

The district court rejected the Brady claim, holding that the
government was not required to disclose the studies because:

(1) the studies’ strongest critiques of CBLA were
available in at least one published study which was
publicly available at the time of Higgs’ trial, strongly
suggesting that, through the exercise of reasonable
diligence, Higgs could have obtained identical or
nearly identical information; (2) the studies’ remain-
ing critiques do not consist of strong, definitive con-
clusions, but at most suggest areas for possible
additional study; (3) by his own admission, Higgs
could have called live witnesses capable of offering
conclusions nearly identical to those offered in the
Government’s studies; and (4) other evidence pre-
sented at trial provided a firm link between Higgs
and the bullets found at the murder scene.

Higgs, 711 F. Supp. 2d at 498. With regard to Higgs’s Strick-
land claim, the district court assumed that counsel’s perfor-
 UNITED STATES v. HIGGS 17
mance was deficient, but "conclude[d] that there was no
reasonable probability that, absent counsel’s alleged errors,
the result of the proceeding would have been different. The
multiplicity and the strength of the evidence . . . establish that
proposition beyond peradventure." Id. at 502.

A.

As the government correctly observes, CBLA evidence was
widely admitted into evidence in various courts in this coun-
try at the time of Higgs’s trial and up until at least 2003, when
the NRC began its review of the issue and ultimately recom-
mended further study. See, e.g., United States v. Davis, 103
F.3d 660, 673-74 (8th Cir. 1996); Haynes v. United States,
451 F. Supp. 2d 713, 720 (D. Md. 2006); State v. Noel, 723
A.2d 602, 605-06 (N.J. 1999).3 However, it seems equally
3
In the wake of the scientific community’s more recent reports about
CBLA evidence, courts have, in appropriate cases, granted new trials or
reversed convictions that hinged upon it. Compare Ragland v. Common-
wealth, 191 S.W.3d 569, 582 (Ky. 2006); (overturning murder conviction
where CBLA was the only conclusive evidence linking defendant to the
murder bullet), Clemons v. State, 896 A.2d 1059, 1078 (Md. 2006)
(reversing the trial court’s denial of defendant’s motion to exclude CBLA
evidence because "a genuine controversy exists within the relevant scien-
tific community about the reliability and validity of CBLA" and "[t]he
only consensus that can be derived from [the scientific studies] is that
more studies must be conducted"), and New Jersey v. Behn, 868 A.2d 329,
345 (N.J. Super. Ct. App. Div. 2005) (granting new trial where the proof
was "far from overwhelming" and the CBLA evidence was not cumulative
or merely impeaching), with United States v. Berry, 624 F.3d 1031, 1041
(9th Cir. 2010) (rejecting § 2255 claim based upon CBLA evidence
because "while . . . the studies may caution against widespread usage of
[CBLA] evidence," they did not "establish that [CBLA] evidence is so
fundamentally unreliable that its introduction at [defendant’s] trial violated
his due process rights"), and In re Berkley, 375 Fed. App’x. 413, 415 (5th
Cir. 2010) (denying request to file successive application for habeas relief
from capital conviction based upon CBLA criticism because, even assum-
ing that the petitioner could not have discovered the flaws in the CBLA
evidence through the exercise of reasonable diligence, he failed to
"show[ ] that but for the flawed bullet analysis, no reasonable factfinder
would have found him guilty of capital murder").
18 UNITED STATES v. HIGGS
clear, as Higgs has acknowledged, that the criticisms of
CBLA were already present in the public domain at the time
of Higgs’s trial, even if the FBI Study and the Iowa State
Study might not have been.

Having reviewed the record presented by Higgs on this
issue, we cannot conclude that the government violated its
Brady obligations by failing to disclose the two internal
reports in existence at the time of Higgs’s trial. The reports
represent early attempts by the FBI to quantify the conclu-
sions that could be drawn from lead analysis to counter the
criticisms that were in existence at the time and ultimately did
little more than advise the FBI that further study was war-
ranted. Additionally, the criticisms of CBLA appear to have
been available to trial counsel prior to trial.

Higgs also failed to demonstrate that his trial counsels’
handling of the CBLA issue rose to the level of constitution-
ally deficient performance under Strickland. Defense counsel
conducted a thorough and effective cross-examination of
Lundy, demonstrating that Higgs’s counsel were well
acquainted with the criticisms of CBLA, and we see little that
could have been gained by calling a defense expert to offer
comparable criticisms. For example, Lundy admitted that
CBLA evidence is far different from fingerprint analysis and
DNA analysis, which provide narrow or unique identifiers.
She testified that all bullets come from the same six secondary
smelters, that they all share some similarities in elemental
composition, that an exact replication of elemental composi-
tions can never be achieved, and that there is always uncer-
tainty in measurements. She testified that Remington, the
bullet manufacturer in this case, would have manufactured
approximately five million bullets in 1995, and that there
would be many, many other bullets with the same elemental
composition as those matched in this case. She also testified
that bullets within the same box of ammunition may be found
to have different elemental compositions.
 UNITED STATES v. HIGGS 19
When considering a claim of deficient performance, courts
must evaluate the conduct from counsel’s perspective at the
time. See Strickland, 466 U.S. at 690. We "indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance," Roach v. Martin,
757 F.2d 1463, 1476 (4th Cir. 1985), and "that, under the cir-
cumstances, the challenged action, might be considered sound
trial strategy," Strickland, 466 U.S. at 689 (internal quotation
marks omitted). "The question is whether an attorney’s repre-
sentation amounted to incompetence under ‘prevailing profes-
sional norms,’ not whether it deviated from best practices or
most common custom." Harrington v. Richter, 131 S. Ct. 770,
788 (2011).

Here, Higgs has failed to demonstrate that defense coun-
sel’s handling of the CBLA evidence at trial was constitution-
ally ineffective simply because counsel did not ferret out the
two preliminary studies or present a defense expert armed
with the same information. On the contrary, counsel went a
long way towards impeaching the uniqueness and homogene-
ity of lead melts, as well as the overall probative value of the
CBLA evidence, demonstrating that counsel was well-versed
in the subject and able to obtain important concessions. And
counsel did so without unduly calling attention to the evi-
dence, or making it appear to be of more importance than was
warranted. Such decisions by experienced, capital defense
counsel fall squarely within the class of those to which we
give deference.

B.

Nevertheless, even if we were to assume that the govern-
ment violated its Brady obligation by failing to produce the
two reports to Higgs’s counsel, or that the performance of
Higgs’s counsel was constitutionally deficient, Higgs is not
entitled to relief because he has also failed to demonstrate that
he was prejudiced by the government’s failure to disclose the
20 UNITED STATES v. HIGGS
reports to him prior to trial or by the admission of the CBLA
evidence at trial.

1.

In this appeal, Higgs’s counsel attempts to establish preju-
dice in two ways: (1) by claiming that the CBLA evidence
provided the crucial link between "Higgs[’s] bullets taken
from the [murder] scene" and the bullets taken from "Higgs’s
apartment"; and (2) by claiming that it was the CBLA evi-
dence that "enabled the [g]overnment to introduce prejudicial
Rule 404(b) evidence" of Higgs’s involvement in the Cha-
conia and the Cherry Lane shootings. Brief of Appellant at
45; see Fed. R. Evid. 404(b). Neither assertion, however, is
accurate.

First, Higgs asserts that the CBLA evidence permitted the
government "to put the .38 caliber handgun in Higgs’s posses-
sion" prior to the murders by "showing that a bullet recovered
from the Chaconia incident matched the chemical composi-
tion of the bullets recovered from Cherry Lane and the capital
killings." Brief of Appellant at 45. In the absence of the
CBLA evidence, Higgs claims, "there would have been no
unimpeached evidence linking Higgs’s bullets taken from the
crime scene to Higgs’s apartment." Id.; see also Reply Brief
at 1 (arguing that "Higgs’s convictions and death sentences
are tainted" by the CBLA evidence because it "purport[s] to
‘match’ bullets taken from Higgs’s apartment with those
found at the scene of the homicide, and two unrelated shoot-
ing incidents"); id. at 21 (contending that "only the CBLA
evidence purported to draw a connection between the bullets
Higgs owned and those fired at the homicide scene and the
other shooting incidents") (emphasis added).

However, the CBLA evidence did not match the bullets
from Higgs’s apartment or the Chaconia shooting to the mur-
der bullet; it only linked the Cherry Lane bullet to the murder
bullet. In fact, Lundy did not even bother to test the Chaconia
 UNITED STATES v. HIGGS 21
bullet or the majority of the bullets found in Higgs’s apart-
ment for comparison to the murder bullets because they were
of a different type, and the only .38 caliber wadcutter bullet
that was found in Higgs’s apartment did not match the wad-
cutter bullets found at the murder scene or at Cherry Lane.

Higgs’s claim that it was the CBLA evidence that enabled
the government to introduce the 404(b) evidence of the
Cherry Lane and Chaconia shootings is also inaccurate. On
direct appeal, Higgs challenged the district court’s admission
of the Chaconia shooting under Rule 404(b), which, in con-
trast to the Cherry Lane shooting, involved a different type of
bullet than the murder bullet and a crime to which Higgs had
not pled guilty. We held as follows:

The bullet recovered from the Chaconia shooting
was forensically similar to those recovered from the
Patuxent murder scene and the victims, in that they
shared the same rifling characteristics – five lands
and grooves with a right twist. Thus, the evidence of
Higgs’s participation in the Chaconia Nightclub
shooting was properly introduced by the government
as a means to link Higgs to the same caliber weapon
that Gloria testified Higgs owned and retrieved from
the drawer on the night of the murders, and one
which shared the same rifling characteristics as did
the murder weapon.

Higgs I, 353 F.3d at 311-12 (emphasis added). In doing so,
we made no mention of the CBLA evidence, which is unsur-
prising given that the CBLA evidence did not match the Cha-
conia bullet to the murder bullet at all. Rather, the testimony
and forensic evidence of rifling characteristics alone demon-
strated the relevance and admissibility of the prior shootings
under Rule 404(b). The district court’s admission of the Cha-
conia shooting did not rest upon the CBLA evidence, and
while the CBLA evidence could have provided an additional
22 UNITED STATES v. HIGGS
basis upon which to admit the Cherry Lane shooting had it
been challenged, it was neither critical nor necessary.

2.

Finally, we have carefully considered the materiality of the
CBLA evidence that was introduced, and the question of
whether there is a reasonable probability that the result of the
proceedings would have been different had the government
produced the studies at issue or had trial counsel handled the
CBLA issue in different way. We are satisfied that there is not.4

As we have twice concluded, the evidence of Higgs’s guilt
and of his predominant role in the brutal kidnappings and
murders of the three women was overwhelming, as was the
evidence, irrespective of the CBLA evidence, that linked
Higgs to the .38 caliber weapon and to .38 caliber ammuni-
tion.

Gloria’s eyewitness testimony provided compelling and
convincing details of the events of that evening and of
Higgs’s involvement in them. Jackson’s day planner, contain-
ing Higgs’s name, telephone number, address and vehicle
license tag number, corroborated Gloria’s testimony regarding
Higgs’s words and actions in the wake of his violent argument
with Jackson and the threat she made as she was leaving his
apartment. And, as the government pointed out in closing
arguments, Gloria’s inability to recall every precise detail,
4
We may summarily dispose of Higgs’s claim that the production of the
preliminary studies or the presentation of comparable information would
have resulted in the district court’s exclusion of CBLA evidence at trial.
Higgs’s counsel has conflated the criticisms of CBLA that were present
at the time of trial with the criticisms that followed. We evaluate the obli-
gations of the government and the conduct of defense counsel at the time
of trial and have no difficulty concluding that there is no reasonable proba-
bility that the trial court would have excluded the CBLA evidence in Octo-
ber of 2000.
 UNITED STATES v. HIGGS 23
such as who disposed of the gun, could well have bolstered
his credibility.

For his part, Higgs admitted to the authorities that he knew
Tanji Jackson and claimed that he commented to a guest at his
girlfriend’s house the following evening that he knew "that
Tanji girl," even though the names of the victims had not yet
been released to the press. Id. at 291 (internal quotation marks
omitted). And after unsuccessfully attempting to establish an
alibi through Smith and Darby, Higgs admitted to Darby that
he was with Haynes on the night of the murder, that the
women were killed because Jackson was "snitching" on one
of them, and that the other two women were just along "for
his friends." Id. at 292 (internal quotation marks omitted).

As we previously summarized, there was overwhelming
evidence confirming that:

it was Higgs who set up the "dates" with the girls,
Higgs who got into the violent argument with Jack-
son, Higgs who observed Jackson writing down his
license plate number, Higgs who retrieved the .38
caliber murder weapon (which he owned) and told
the other two men to come along, Higgs who told
Haynes to "trick" the women into getting into the
van, Higgs who drove the van past the route back to
their homes and into the Patuxent National Wildlife
Refuge, Higgs who handed the murder weapon to
Haynes moments before Haynes shot and killed the
women, and Higgs who orchestrated the destruction
of the physical evidence at his apartment after the
murders.

Higgs II, 95 Fed. App’x. at 44.

With regard to the Chaconia and Cherry Lane shootings,
the eyewitness testimony and forensic evidence, irrespective
of the CBLA, easily place a .38 caliber weapon in Higgs’s
24 UNITED STATES v. HIGGS
possession in the two months prior to the murders. The rifling
evidence alone, unlike the CBLA evidence, demonstrated a
consistency in the bullets fired at all three crime scenes and
corroborated the eyewitness testimony that Higgs possessed,
used, or directed the use of a .38 caliber weapon in connection
with all three crimes. Higgs’s incriminating statements made
in connection with the two prior shootings are particularly
significant. Higgs conveyed to Williams that he could not
plead guilty to the Chaconia shooting (in which Haynes was
not involved) because the authorities might use the gun in
connection with the murder case. And Higgs gratuitously
advised the court during his plea to the Cherry Lane shooting
(in which Haynes was involved) that Haynes had fired the .38
caliber weapon and that Higgs had fired the 9mm weapon.
Finally, Higgs’s reference to Haynes as his "youngan," who
would "hold up" if offered a deal to turn on him, revealed
much about how Higgs viewed his relationship with his youn-
ger companion. Higgs I, 353 F.3d at 293 (internal quotation
marks omitted).

Given this overwhelming evidence of Higgs’s role in the
murders, we are satisfied that the CBLA evidence did not
affect the outcome of the verdicts. The CBLA evidence
matching the Chaconia bullet to the bullets in Higgs’s apart-
ment merely corroborated the eyewitness testimony of Kab-
tamu, the crime scene evidence from the Chaconia shooting,
including the rifling evidence, and Higgs’s statements to Wil-
liams, all of which placed the .38 caliber weapon in Higgs’s
hands on the night of that shooting. Unlike the rifling evi-
dence, however, there was no CBLA match between the
ammunition used in the Chaconia shooting or the ammunition
at Higgs’s home and the ammunition used in the murders.
Similarly, the CBLA evidence matching the Cherry Lane bul-
let to the murder bullet merely corroborated the eyewitness
testimony of Simms and others at Cherry Lane and the crime
scene evidence from that shooting, including the rifling evi-
dence that also matched the Cherry Lane bullet and the mur-
der bullet. However, there was no match between the Cherry
 UNITED STATES v. HIGGS 25
Lane bullet and the bullets associated with Higgs’s apartment,
and Higgs and Haynes were both involved in the Cherry Lane
shooting and in the murders. Higgs did not contest that
Haynes was the triggerman, or that Haynes used a .38 caliber
weapon to murder the women. And, as defense counsel
pointed out to the jury, there was substantial evidence that
Haynes had equal if not more access to Higgs’s apartment.
Thus, while the CBLA evidence matched the bullet from
Cherry Lane with the murder bullet, it was cumulative to
other evidence but not inconsistent with Higgs’s defense.

Having reviewed the challenged evidence in the context of
the entire case, we conclude there is no reasonable probability
that the district court would have excluded the CBLA testi-
mony at Higgs’s trial had it been challenged, or that the out-
come of the guilt or sentencing phase would have been
different had the CBLA evidence been excluded or subjected
to additional cross-examination.

V.

Higgs’s final claim is that his defense counsel were ineffec-
tive because they failed to file a motion for a new trial under
Rule 33 of the Federal Rules of Criminal Procedure within
three years of the verdict, based upon the CBLA studies that
were published thereafter.

After his trial was concluded, Higgs requested and was
granted a substitution of counsel for one of his two defense
attorneys for the purpose of pursuing an appeal and other
post-conviction relief. Higgs’s counsel did not challenge the
admission of the CBLA evidence on direct appeal, and
although defense counsel did file a new trial motion based
upon other evidence discovered in connection with a fresh
review of the case, they did not file a similar motion on the
basis of the more recent CBLA studies. Higgs contends that
defense counsels’ failure to also challenge the CBLA evi-
26 UNITED STATES v. HIGGS
dence in a motion for a new trial amounted to constitutionally
deficient performance, and that he was prejudiced as a result.

To receive a new trial based on newly discovered evidence,
a defendant must show that the evidence is newly discovered;
that he has been diligent in uncovering it; that the evidence is
not merely cumulative or impeaching; that the evidence is
material to the issues involved; and that the evidence would
probably produce an acquittal. See United States v. Chavis,
880 F.2d 788, 793 (4th Cir. 1989). Unless the defendant dem-
onstrates all five of these factors, the motion should be
denied. See id. To obtain relief in this proceeding, Higgs must
demonstrate that counsel’s failure to file the motion consti-
tuted deficient performance and that he was prejudiced as a
result. See Strickland, 466 U.S. at 687-88.

Higgs has failed to demonstrate that defense counsel were
constitutionally ineffective for failing to file a motion for a
new trial based upon the post-trial studies. The post-trial
studies published in 2002 and 2003 were largely cumulative
of the criticisms known at the time of trial and were at best
merely impeachment evidence. Cf. Berry, 624 F.3d at 1043
(concluding that even "the [NRC] report and the FBI’s dis-
continued use of [CBLA] evidence were no more than
impeaching evidence of the [CBLA] testimony introduced at
[defendant’s] trial"). And, as discussed above, there is no rea-
sonable probability that the post-trial studies or a new trial
would have resulted in a different verdict. We cannot say that
the post-trial defense counsel team was constitutionally inef-
fective simply because they did not pursue a new trial motion
on the basis of the CBLA developments, particularly in view
of the cross-examination that was conducted and the minor
role that the evidence played during the trial, or that Higgs
was prejudiced as a result.
 UNITED STATES v. HIGGS 27
VI.

For the foregoing reasons, we affirm the district court’s
order denying Higgs’s motion under 28 U.S.C. § 2255.

AFFIRMED