IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50075
Summary Calendar
_____________________
United States of America,
Plaintiff-Appellee,
versus
Mukhtar Ahmad,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
For the Western District of Texas
(SA-88-CR-103(2))
_________________________________________________________________
(July 13, 1995)
Before JOHNSON, DUHÉ and BENAVIDES, Circuit Judges.*
JOHNSON, Circuit Judge:
In this habeas corpus proceeding pursuant to 28 U.S.C. § 2255,
Mukhtar Ahmad contends that he received ineffective assistance of
counsel for a myriad of reasons and that he was denied the right to
counsel of his choice. The district court denied relief without a
hearing. Ahmad now appeals and we AFFIRM.
FACTS AND PROCEDURAL HISTORY
This conspiracy began in Pakistan when Mohd Fida attempted to
hire Gohar, a/k/a Tereen, to transport a load of heroin to the United
States. Unbeknownst to Fida, Gohar was a government informant and he
put Fida in contact with Agent Carter of the Drug Enforcement Agency
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
(DEA). Posing as a drug courier, Carter met with Fida in Pakistan and
arranged for another meeting with Fida in the United States.
Early the next month, Carter and Fida met in Atlantic City. Fida
wanted a sample of the heroin to take to prospective buyers in New
York City. He told Carter that he had brought a man with him who had
driven him from New York. He further told Carter that this individual
was trustworthy and that he and this individual had done a lot of
business in Europe. This individual was appellant, Mukhtar Ahmad.
Ahmad then retrieved the car and picked up the other men at the
hotel. In the car, Agent Lawrence brought out a package which, in a
loud voice, he referred to as the heroin, and transferred it to Fida.
Unhappy with his buyers in New York City, Fida contacted Carter
seeking his assistance in finding new buyers. Carter suggested that
Fida come to San Antonio and Fida agreed. Ahmad later called Carter
and asked if Carter would arrange for him to come to San Antonio also.
At the San Antonio meeting, Carter asked Ahmad how much he and
Fida wanted for the entire twenty-two kilograms of heroin. Ahmad
conferred with Fida in a foreign language and then wrote $1,500,000.
Carter, looking at that figure, remarked that the asking price
appeared to be about $80,000 per kilogram. Ahmad immediately
responded, however, that it was closer to $70,000 per kilogram.
Additionally, both Ahmad and Fida discussed future transactions for
heroin and hashish when this transaction was completed.
Fida then asked to meet Carter's buyer. The three men proceeded
to an office to meet the buyer, who was in reality DEA Agent Frank
Garcia. At that meeting, both Fida and Ahmad vouched for the purity
of the heroin and told of their ability to supply more. Once a
2
purchase price for the load of heroin had been agreed upon, an
undercover agent brought in a briefcase containing $400,000. Then, a
tote bag containing the heroin was brought into the room. Shortly
thereafter, the agents arrested Fida and Ahmad.
The two men were charged with various drug offenses and trial
proceeded against Ahmad on September 12, 1988.1 The jury convicted
Ahmad of conspiracy to possess with intent to distribute and aiding
and abetting an attempt to distribute heroin. The court then
sentenced Ahmad to 188 months of imprisonment, five-years of
supervised release and a fine of $17,500.2
This Court affirmed Ahmad's conviction and sentence on direct
appeal.3 Now, Ahmad has filed the instant motion pursuant to 28
U.S.C. § 2255 contending that his counsel was ineffective for a
plethora of reasons and that he was denied the right to counsel of his
choice. The magistrate judge, without holding a hearing, determined
that Ahmad's contentions were without merit. Ahmad objected and,
after an independent review of the record, the district court rejected
Ahmad's objections and denied relief. Ahmad now appeals.
DISCUSSION
I. Ineffective Assistance of Counsel
1
Before trial, Fida pled guilty to conspiracy to possess
with intent to deliver heroin in violation of 21 U.S.C. §
841(a)(1).
2
However, as the court failed to sentence Ahmad on the
second count of conviction, the court held a second sentencing
hearing. At that hearing, the court sentenced Ahmad on the
second count to identical and concurrent sentences of
imprisonment and supervised release as the first count and split
the fine between the two counts.
3
United States v. Mukhtar, No. 88-5647 (5th Cir. Jan. 31,
1990) (unpublished).
3
The bulk of Ahmad's complaints are couched in terms of
ineffective assistance of counsel. To obtain relief under § 2255
based on ineffective assistance of counsel, a defendant must show not
only that his attorney's performance was deficient, but also that the
deficiencies prejudiced the defense. U. S. v. Smith, 915 F.2d 959,
963 (5th Cir. 1990); Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 2064 (1984). If proof of one element is lacking, we need
not examine the other. Kirkpatrick v. Blackburn, 777 F.2d 272, 285
(5th Cir. 1985), cert. denied, 106 S.Ct. 2907 (1986).
To show that his counsel's performance was constitutionally
deficient, a movant must show that his counsel's representation "fell
below an objective standard of reasonableness." Darden v. Wainwright,
477 U.S. 168, 184, 106 S.Ct. 2464, 2473 (1986). In evaluating such
claims, this Court indulges in a "strong presumption" that counsel's
representation fell "within the wide range of reasonable professional
competence," Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988), and
the defendant must overcome the presumption that the challenged action
might be considered sound trial strategy. Strickland, 104 U.S. at
2065. To demonstrate prejudice, a movant must show that "there is a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Id. at 2068.
A. Failure to Investigate and Prepare for Trial
Ahmad first contends that his counsel was ineffective because he
failed to properly investigate and prepare for trial. In order to
establish that his counsel was ineffective for a failure to inves-
tigate, a movant must do more than merely allege a failure to prepare
or investigate. Rather, a movant must "allege with specificity what
4
the investigation would have revealed and how it would have altered
the outcome of the trial." U. S. v. Green, 882 F.2d 999, 1003 (5th
Cir. 1989). Without such a specific showing of the evidence or
testimony that would have been revealed by a proper investigation, a
habeas corpus court cannot even begin to apply the Strickland
standards. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994).
Ahmad's claims here are long on generalities and short on
specifics. Moreover, when Ahmad is specific as to what evidence could
have been discovered by a better investigation, his claims generally
deal with impeachment evidence as to collateral matters.4 Given the
substantial evidence of Ahmad's guilt, it is unreasonable to believe
that impeachment of Garcia and Carter as to these collateral issues
would have changed the result. Thus, Ahmad has failed to show
sufficient prejudice. Strickland, 104 U.S. at 2068.
Further, we disagree that, had Ahmad's counsel conducted a better
investigation of the Jencks Act material, he could have moved the
district court to suppress certain testimony from Agents Carter and
Garcia. The testimony that Ahmad points to is the testimony of Agent
Garcia that Ahmad told him that he had been in the heroin business
half his life and the testimony of Agent Carter that Ahmad told him
about an incident when Ahmad had arranged for a large drug transaction
involving roughly five million dollars. Ahmad argues that, with a
better investigation, his attorney could have developed evidence
4
For instance, Ahmad argues that had his attorney
conducted a better investigation, he would have discovered
information with which he could have impeached the testimony of
Carter and Garcia as to the iden-tities of the "owners" of the
heroin. The government only had to prove that Ahmad "possessed"
the heroin, though, and not that he owned it.
5
suggesting that these statements were not true. However, this misses
the point. It is unimportant if these statements were factually
correct. It is only important that Ahmad made these statements in an
attempt to bolster his credibility with the agents. These statements
were properly admitted for that purpose.5 As the statements were
properly admitted, there was no prejudice.
Finally, Ahmad alleges that his trial counsel was ineffective for
failing to object because the trial commenced less than thirty days
from the date of the superseding indictment in violation of 18 U.S.C.
§ 3161(c)(2). That section provides, in pertinent part, that "the
trial shall not commence less than thirty days from the date on which
the defendant first appears through counsel. . ." Id. Although the
superseding indictment was returned by the grand jury on August 17,
1988, Ahmad first appeared with counsel on May 12, 1988. The trial
commenced on September 12, 1988, more than thirty days after Ahmad
5
In a later argument, Ahmad contends that his counsel was
ineffective for failing to object to this evidence as extrinsic
bad acts that were not charged in the indictment. "Evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith." Fed. R. Evid. 404(b). Such evidence may be
admissible, however, to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. Id. Thus, if prior-bad-act evidence is relevant to an
issue other than character and is therefore admissible under Rule
404, it is admissible if its prejudicial effect does not
substantially outweigh its probative value. United States v.
Gadison, 8 F.3d 186, 192 (5th Cir. 1993). In this case, Ahmad's
defense was that he was a hapless dupe unaware of the heroin.
The evidence that he bragged to undercover agents about past drug
dealings so as to earn their trust tends to disprove that he was
unaware of the heroin. Thus, this evidence was not admitted to
show the defendant's character, but rather to show that Ahmad was
aware that this was a drug transaction. Accordingly, this
evidence would be admissible under Rule 404. Further, we do not
find the prejudicial effect of these statements to substantially
outweigh their probative value.
6
first appeared with counsel. Hence, Ahmad's argument is without
merit. U. S. v. Rojas-Contreras, 474 U.S. 231, 234, 106 S.Ct. 555,
557 (1985) (§ 3161(c)(2) fixes the beginning point for the trial
preparation period as the first appearance through counsel and not the
date of indictment or any superseding indictment).
B. Violation of Confrontation Clause
Ahmad contends that his counsel was ineffective because he failed
to object to an allegedly hearsay statement on the ground that it
violated his rights under the Sixth Amendment to confront witnesses
against him. In specific, Ahmad objects to testimony of Agent Garcia
whereby Agent Garcia related that Agent Carter had informed him that
Fida and Ahmad were the owners of the heroin. Arguing that Carter was
the real witness against him, Ahmad contends that he should have been
able to cross-examine Carter.
Agent Carter did testify at extensively at trial, though.
Moreover, Agent Carter was subjected to lengthy cross-examination.
The Confrontation Clause mandates that a defendant be permitted to
cross-examine a witness to determine if the witness has any biases,
prejudices or ulterior motives that may provide an incentive on the
part of the witness to falsify his testimony. U. S. v. Rocha, 916
F.2d 219, 242 (5th Cir. 1990), cert. denied, 111 S.Ct. 2057 (1991).
Ahmad was afforded this opportunity and thus, we see no violation of
the Confrontation Clause.
C. Failure to Object to the Heroin in the Jury Room
As Ahmad concedes, the heroin was properly admitted into
evidence. Even so, Ahmad alleges that his counsel was ineffective
because he failed to argue, pursuant to Fed. R. Evid. 403, that the
7
placement of the four bags of heroin in the jury room during
deliberations was unduly prejudicial. In light of the substantial
evidence against him, Ahmad has failed to convince us that the
placement of the heroin in the jury room was so prejudicial that, had
his attorney successfully argued to keep it out of the jury room, the
result of the proceeding would have been different.
D. Failure to Request a Cautionary Plea regarding Codefendant's
Plea of Guilty
During trial, the jury learned that Ahmad's codefendant Fida had
pled guilty and Ahmad now claims that his counsel was ineffective for
failing to request a cautionary instruction limiting the use of that
information. Our precedent does make it clear that evidence about a
co-conspirator's guilt is not admissible as substantive proof of a
defendant's guilt. U. S. v. Leach, 918 F.2d 464, 467 (5th Cir. 1990),
cert. denied, 111 S.Ct. 2802 (1991). However, we have recognized an
exception to this rule when the record reflects a defense strategy
that relies on the co-conspirator's guilt. U. S. v. Samak, 7 F.3d
1196, 1198 (5th Cir. 1993). In other words, "a defendant will not be
heard to complain of its admission when he instigates such admission,
or attempts to exploit the evidence by frequent, pointed, and direct
references to the co-conspirator's guilty plea." Leach, 918 F.2d at
467 (footnote omitted).
In this case, it was the defense's strategy to admit the guilt of
Fida and to paint Ahmad as Fida's hapless dupe. Because defense
counsel made pointed and direct references to Fida's guilty plea as a
matter of strategy, Ahmad cannot be heard to complain of its admission
or the lack of a cautionary instruction. Samak, 7 F.3d at 1198.
E. Failure to Object to a Violation of Fed. R Crim. P. 43(a)
8
Fed. R. Crim P. 43(a) provides that the "defendant shall be
present . . . at every stage of trial including the impaneling of the
jury and the return of the verdict, and at the imposition of sentence,
except as otherwise provided by this rule." In this case, during
deliberations, the jury sent out a note requesting the transcripts of
certain testimony. The judge denied the jury's request in Ahmad's
absence. Ahmad now argues that his counsel was ineffective because he
failed to object that this action was taken without Ahmad present.
However, Ahmad has failed to demonstrate any prejudice flowing from
this failure and thus his claim fails. Strickland, 104 U.S. at 2068.
F. Failure to Object to the Admission of Ahmad's Juvenile
Conviction
Ahmad contends that his counsel was ineffective because he failed
to object to the prosecutor's cross-examination that resulted in the
admission of Ahmad's juvenile conviction, failed to object to the
prosecutor's references to it in closing argument, failed to request a
limiting instruction with regard to the use of Ahmad's juvenile
conviction, and failed to object to the district court's erroneous
instruction regarding evidence of the prior conviction. Ahmad's
arguments are undercut by this Court's opinion on direct appeal.
First, this Court specifically concluded on direct appeal that the
evidence of the juvenile conviction was properly admitted to impeach
Ahmad. R. Vol. 2 at 459. Moreover, that opinion also concluded that
"both the court and counsel for both sides advised the jury as to the
limited purpose for which the 1970 misconduct was admitted." Id. at
460. Lastly, that opinion found that no incorrect instructions were
given by the court in this case. Id. at 462.
It is well-settled in this Circuit that issues that are raised
9
and disposed of in a previous appeal from an original judgment of
conviction are not considered in section 2255 motions. U. S. v.
Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, 106 S.Ct. 1977
(1986). As these issues were disposed of on direct appeal, we will
not reconsider them here. Accordingly, Ahmad's claims fail.
G. Failure to Object to Prosecutor's Closing Argument
In this argument, Ahmad contends that his counsel was ineffective
because he failed to object to allegedly improper remarks made by the
prosecutor during closing arguments. Specifically, Ahmad alleges that
the prosecutor stated his personal opinion that Ahmad was guilty, that
Ahmad's story was ridiculous and that the prosecutor personally
vouched for the credibility of prosecution witnesses.
It is true that prosecutors, who bear the imprimatur of the
government, may not rely on their own credibility to bolster the
credibility of a witness. Drew v. Collins, 964 F.2d 411, 419 (5th
Cir. 1992), cert. denied, 113 S.Ct. 3044 (1993). They may, however,
state the inferences and conclusions they wish the jury to draw from
the evidence, U. S. v. Laury , 985 F.2d 1293, 1307 (5th Cir. 1993),
and they may make a fair response to subjects developed by opposing
counsel. U. S. v. Chase, 838 F.2d 743, 749-50 (5th Cir), cert.
denied, 108 S.Ct. 2022 (1988).
In this Court's opinion on direct appeal, this Court carefully
parsed the arguments made by the prosecutor. Viewed in context, this
Court, on direct appeal, found that the prosecutor's observations were
not statements of his personal opinion. Rather, this Court found that
prosecutor was urging conclusions which the jury might reasonably draw
from the evidence. R. Vol. 2 at 461. Moreover, in light of the
10
comprehensive instructions given by the district court, this Court
found that, "given the overwhelming evidence against Ahmad, it cannot
be held that there is a reasonable probability that the verdict might
have been different absent the prosecutor's remarks." Id. at 462.
Ahmad failed to show, on direct appeal, that absent these statements
the result would have been different and he has failed to make such a
showing here. Thus, he cannot meet the prejudice showing of the
Strickland standard for ineffective assistance of counsel.
Strickland, 104 U.S. at 2068.
H. Improper Remarks During Closing Arguments by Defense Counsel
During closing arguments, defense counsel made several remarks
praising the drug enforcement agents for the risks they take and the
good job they do and for getting the guilty man (Fida). Ahmad
contends that these remarks were improper and rendered his counsel's
performance ineffective. For support, Ahmad relies on this Court's
decision in U. S. v. Brown, 451 F.2d 1231 (5th Cir. 1971), in which
similar comments were found to be impermissible. Ahmad's reliance on
Brown is misplaced, though, because Brown involved prosecutors
vouching for government witnesses. See Id. at 1235-36.
In this case, it was Ahmad's own counsel who made the statements
favorable to the prosecution witnesses. These statements were
consistent with the defense strategy to blame Fida and portray Ahmad
as a hapless dupe. Thus, as Ahmad has failed to overcome the strong
presumption that these statements might be considered sound trial
strategy, Strickland, 104 S.Ct. at 2065, he has not shown his
counsel's performance to have been deficient.
I. Failure to Raise an Entrapment Defense
11
Ahmad contends that his counsel was ineffective for failing to
raise the defense of entrapment. We find, however, that not rasing
this defense was a strategic choice. The evidence was overwhelming
that a crime had been committed. Defense counsel chose to blame this
crime on Fida and paint Ahmad as a hapless dupe who did not know about
the heroin transaction. We conclude that counsel's choice not to
present the inconsistent defense of entrapment fell within the wide
range of reasonable professional competence, Bridge v. Lynaugh, 838
F.2d at 773, and that Ahmad has not overcome the presumption that the
challenged action might be considered sound trial strategy.
Strickland, 104 U.S. at 2065. Thus, Ahmad has not shown that his
counsel's conduct was deficient.
J. Alleged Errors in Sentencing
Ahmad makes two arguments that his counsel was ineffective in
regards to the sentence he received. First, Ahmad complains that his
counsel failed to object that his sentence was illegally applied
pursuant to a statutory minimum he claims was not applicable to his
offense. The record clearly shows, though, that Ahmad was properly
sentenced under the Sentencing Guidelines and not pursuant to any
statutory minimum. Thus, Ahmad's proposed objection ins baseless and
his counsel cannot be faulted for not making a pointless objection.
Second, Ahmad contends that his counsel failed to make any
objections at Ahmad's resentencing. Even so, he does not identify any
objections that could have been made nor does he show any prejudice.
Instead, Ahmad argues that prejudice should be presumed relying on
Tucker v. Day, 969 F.2d 155 (5th Cir. 1992). However, in Tucker, this
Court found that the defendant had alleged so great a failure of
12
counsel as to amount to a constructive denial of counsel and thus that
prejudice should be presumed. Id. at 159. In particular, the
defendant in Tucker alleged that his counsel never consulted with him,
had no knowledge of the facts and acted as a mere spectator. Ahmad
has made no similar allegations. He has merely alleged that his
counsel did not make any objections, but he has not suggested any
meritorious objections his counsel could have made. Ahmad did not
show a constructive denial of the right to counsel and thus he was not
excused from the necessity of showing Strickland prejudice. Thus his
claim of ineffective assistance must fail.
K. Ineffective Assistance of Counsel Conclusion
For the reasons stated above, Ahmad's numerous and scattergun
allegations of ineffective assistance of counsel are without merit.
II. Denial of Right to Counsel of Ahmad's Choice
The trial court herein disqualified Ahmad's retained counsel
based on potential problems stemming from said counsel's prior
representation of codefendant Fida. This action, Ahmad contends,
violated his Sixth Amendment right to counsel of his choice. This
circuit does not recognize such a right, though. Yohey v. Collins,
985 F.2d 222, 228 (5th Cir. 1993) (right to counsel guaranteed by
Sixth Amendment does not include the right to counsel of defendant's
choice); U. S. v. Paternostro, 966 F.2d 907, 912 (5th Cir. 1992)
(Sixth Amendment does not guarantee an absolute right to counsel of
one's choice). Accordingly, this claim must fail.
In addition, Ahmad contends that the district court erred by
granting the government's motion to disqualify Ahmad's chosen counsel
13
without a hearing.6 We review a district court's disqualification
ruling for an abuse of discretion. Wheat v. U. S., 486 U.S. 153, 163-
64, 108 S.Ct. 1692, 1699-70 (1988).
The basis for the disqualification in this case was that the
retained attorney had previously represented Ahmad's codefendant Fida.
Ahmad contends that, at a hearing, he could have waived any conflicts
arising from this dual representation. See U. S. v. Garcia, 517 F.2d
272, 276 (5th Cir. 1975) (defendants may waive their right to
conflict-free representation). A conflict of interest does not seem
to be the only concern here, though. It also appeared possible that
the retained counsel could have been called as a witness to impeach
Fida. For this reason as well, the district court disqualified the
retained counsel. See U. S. v. Vasquez, 995 F.2d 40, 42 (5th Cir.
1993) (district court may refuse defendant's waiver of conflict-free
counsel to ensure integrity of proceedings and perception of
fairness). Under these circumstances, we see no abuse of discretion.
III. Failure to Hold an Evidentiary Hearing
Ahmad argues that the district court abused its discretion by
failing to hold an evidentiary hearing on his section 2255 motion. "A
motion brought under 28 U.S.C. § 2255 can be denied without a hearing
only if the motion, files, and records of the case conclusively show
that the prisoner is entitled to no relief." U. S. v. Bartholomew,
6
As Ahmad did not press this nonconstitutional claim on
direct appeal, he would normally be barred from asserting it in
collateral review. United States v. Vaughn, 955 F.2d 367, 368
(5th Cir. 1992). However, the government must raise this
procedural bar in the district court to rely on it. United
States v. Marcello, 876 F.2d 1147, 1153 (5th Cir. 1989). As the
government did not do so, it has been waived. United States v.
Drobny, 955 F.2d 990. 995 (5th Cir. 1992).
14
974 F.2d 39, 41 (5th Cir. 1992). As the instant record is sufficient
to show conclusively that Ahmad is entitled to no relief, an
evidentiary hearing was unnecessary.
CONCLUSION
For the reasons stated above, the judgment of the district court
is AFFIRMED.
15