United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2011 Decided January 17, 2011
No. 09-3012
UNITED STATES OF AMERICA,
APPELLEE
v.
ROGER S. LATHERN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cr-00031-1)
Gary M. Sidell, appointed by the court, argued the cause
and filed the briefs for appellant.
John L. Hill, Assistant U.S. Attorney, argued the cause
pro hac vice for appellee. On the brief were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III, John P.
Mannarino, T. Anthony Quinn, and Ann K.H. Simon, Assistant
U.S. Attorneys.
Before: HENDERSON, TATEL, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
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GRIFFITH, Circuit Judge: Roger Lathern appeals the
district court’s dismissal of his habeas petition seeking relief
for ineffective assistance of counsel. For the reasons set forth
below, we affirm the judgment of the district court.
I
On the night of December 29, 2004, in Washington, D.C.,
police responded to a call from two women who had seen two
men carrying firearms exit a car together and walk into a
nearby alley. While questioning the women at the scene, a
gunshot was heard. The police cordoned off the alley and
apprehended Roger Lathern and Rahmaan Ward. A search of
the alley discovered a 9-millimeter pistol, a shotgun, and a
single spent shell. United States v. Lathern, 488 F.3d 1043,
1044-45 (D.C. Cir. 2007).
Lathern and Ward were each charged with illegally
possessing a firearm as a convicted felon. Lathern hired an
attorney, Gene Johnson, and Ward was assigned a public
defender, Anthony Axam. Before trial, the prosecutor verbally
offered a seventy-month plea deal to both defendants through
their attorneys. Both attorneys told the prosecutor their clients
were not interested. On August 24, 2005, a jury convicted
Lathern and hung on the charges against Ward, who later pled
guilty.
During sentencing, Lathern protested that his attorney
had never told him of the offer, and that he “might have” pled
guilty had he known of it. Johnson countered that he had told
Lathern of the offer, but that Lathern had instructed him to
turn it down. The district court opined that there was nothing
that could be done about the matter at that point, and that
Lathern could tell his new attorney to raise this issue on
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appeal. The district court then sentenced Lathern to ninety-
seven months in prison, the maximum under the applicable
U.S. Sentencing Guidelines. Lathern appealed his sentence
but failed to include among his arguments any reference to the
plea. We affirmed his conviction in 2007. Lathern, 488 F.3d
at 1044.
Lathern first claimed that Johnson’s alleged failure to tell
him of the proffered plea amounted to ineffective assistance
of counsel in a pro se petition for a writ of habeas corpus filed
with the district court in January 2008. At his habeas hearing
in January 2009, Lathern put on three witnesses: himself; his
co-defendant, Ward; and Ward’s lawyer, Axam. Lathern
testified that he first heard of the plea offer after his
conviction, when he asked Johnson why the prosecutor had
not made an offer. According to Lathern, Johnson told him,
“They did offer you a plea, but whatever it was, we wasn’t
taking it.” Tr. at 49, Jan. 7, 2009. Ward testified that he met
with Lathern and Johnson to discuss his own plea deal, but
that Johnson told him not to take it because “[Johnson] was
this, quote/unquote, superlawyer who didn’t take cops” and
would get them both off. Id. at 32. Axam testified that he
never discussed any plea deal with Johnson. In response, the
government called only Johnson, who testified that he and
Lathern engaged in “constant banter” about whether to plead
guilty, but that Lathern directed him to turn down the offer,
stating, “If I had wanted to plead guilty, I would not have
retained you. I could have done that with my public
defender.” Id. at 94-96; Tr. at 20, Jan. 27, 2009. Johnson also
testified that he had handled about 3,500 criminal cases in his
career and that only about 225 (6%) of them had gone to trial.
Tr. at 91, Jan. 7, 2009.
The district court judge asked Lathern’s habeas counsel,
“[H]ow do I, if to any degree, consider my historical
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experience with Mr. Johnson? Because what is being said [by
Lathern] is totally inconsistent with my long-term
professional association with [Johnson] both on [the] Superior
Court and this court.” Tr. at 48, Jan. 27, 2009. The judge
stated that in his twenty-five years of experience with
Johnson, he could recall only one other case in which Johnson
went to trial. According to the judge, Lathern’s argument that
Johnson avoided an offered plea was, “totally inconsistent
with my historical experience with [Johnson] in regards to
how he seeks to resolve cases on behalf of his
clients . . . [because] the overwhelming number of cases that
he’s had with me, they have resolved themselves by a plea.”
Id. at 48-50. The court also noted that while attorneys Axam
and Johnson differed on what they said to each other before
trial, Axam never testified that Johnson did not tell Lathern of
the plea proposal. Id. at 67. Finding Johnson more credible
than Lathern, the district court dismissed the petition.
With no automatic right of appeal, 28 U.S.C. § 2253(c),
Lathern sought a certificate of appealability which the district
court denied. We reversed the district court and take
jurisdiction to hear his appeal under 28 U.S.C. § 1291.
II
Our analysis of Lathern’s claim of ineffective assistance
of counsel is controlled by Strickland v. Washington, 466 U.S.
668 (1984). To succeed, a petitioner must show both that his
counsel’s performance “fell below an objective standard of
reasonableness” and that “counsel’s errors were so serious as
to deprive the defendant of a fair trial.” Id. at 687-88.
Crediting Johnson’s testimony that he told Lathern of the plea
offer over Lathern’s claim that he did not, the district court
concluded that Lathern had failed to show any error by
Johnson.
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Lathern argues that conclusion was unlawfully based on
extra-record information: the district court’s stated experience
with Johnson’s decided preference for pleas over trials. We
review this argument for plain error because Lathern said
nothing about it to the district court. See United States v.
Keleta, 552 F.3d 861, 867 (D.C. Cir. 2009). Lathern cannot
show plain error without establishing that he was prejudiced
by any mistake. See United States v. Merlos, 8 F.3d 48, 50
(D.C. Cir. 1993). Quite apart from whether the district court’s
statement was in error, it certainly caused Lathern no harm. It
is clear from the record that the district court would have
believed Johnson over Lathern anyway. The district court
identified ample reasons beyond its experience with Johnson
to find him more credible than Lathern, including the length
of Johnson’s time practicing law, Johnson’s ethical and legal
obligations to convey a plea deal to his client, his
forthrightness in admitting a plea offer had been made, the
specificity with which he recounted the details of his
communications about the plea deal, the unlikelihood of an
attorney committing perjury, and Lathern’s three prior felony
convictions. Tr. at 62-66, Jan. 27, 2009. In any event,
Johnson’s preference for pleas over trials was part of the
hearing record, Johnson having testified that he resolved
almost all of his cases throughout his thirty years in private
practice by guilty pleas. Tr. at 91, Jan. 7, 2009.
Lathern next argues that no reasonable fact-finder could
have credited Johnson’s testimony. We have long held that,
[unless] [d]ocuments or objective evidence . . . contradict
the witness’ story; or the story itself [is] so internally
inconsistent or implausible on its face that a reasonable
factfinder would not credit it . . . [the] decision to credit
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the testimony of one of two or more witnesses . . . can
virtually never be clear error.
Bishopp v. District of Columbia, 788 F.2d 781, 785 (D.C. Cir.
1986) (quoting Anderson v. City of Bessemer City, 470 U.S.
564, 575 (1985)) (internal quotation marks omitted). This
approach reflects the deference due to trial court judges who
can observe firsthand the “variations in demeanor and tone of
voice that bear so heavily on the listener’s understanding of
and belief in what is said.” Id. (quoting Bessemer City, 470
U.S. at 575) (emphasis omitted). Here, Johnson’s testimony
was coherent and plausible, and there is nothing indicating
that it was “internally inconsistent.” There were no
“documents or objective evidence” to contradict his story. If
anything, the plausibility of Lathern’s testimony was called
into question by his own witness, Ward, who claimed that
Johnson and Lathern discussed the plea deal the prosecutor
had offered Ward. Lathern asks us to believe that when he
discussed his co-defendant’s plea agreement with Johnson, he
never asked Johnson whether he had received such a deal as
well. That seems an unlikely inference to draw.
Lathern also argues that there is an “inherent
inconsistency” in Johnson’s statement that he believed that
Lathern had a good chance of winning at trial but that he also
repeatedly discussed the possibility of a plea deal with the
prosecution. We disagree. It is entirely plausible to us that an
attorney would pursue every available option for his client,
including a possible plea deal, even if he believed there was a
strong chance of winning at trial. Given that this Court has
held that such credibility determinations “can virtually never
be clear error,” this is not a close call. Id. The district court
had ample reasons for finding Johnson more credible than
Lathern.
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III
We conclude that the district court did not err in finding
that Johnson told Lathern of the plea offer, and therefore that
Johnson made no error on which to base a Strickland claim.
The judgment of the district court is
Affirmed.