United States v. Mitchell, Dennis L.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 3, 2000 Decided June 30, 2000

No. 99-3035

United States of America,
Appellee

v.

Dennis L. Mitchell,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 92cr00213-02)

Jonathan Zucker, appointed by the court, argued the cause
and filed briefs for appellant.

Dennis L. Mitchell, appearing pro se, was on the briefs for
appellant.

Roy W. McLeese, III, Assistant U.S. Attorney, argued the
cause for appellee. Wilma A. Lewis, U.S. Attorney, John R.

Fisher and Sharon A. Sprague, Assistant United States
Attorneys were on the brief. Mary-Patrice Brown, Assistant
U.S. Attorney, entered an appearance.

Before: Williams, Sentelle and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Appellant Dennis L. Mitchell
appeals from an order of the district court denying his motion
for post-conviction relief under 28 U.S.C. s 2255. After
deciding some previously unsettled procedural issues concern-
ing certificates of appealability ("COA") necessary to appeal
the denial of s 2255 motions, we grant a COA as to appel-
lant's claim for per se ineffective assistance of counsel. We
deny his claim on the merits and affirm the order of the
district court.

I. Background

In 1993, Mitchell and a co-defendant were convicted of
conspiracy to distribute and possess with intent to distribute
cocaine and cocaine base in violation of 21 U.S.C. ss 846,
841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(iii). Mitchell was sen-
tenced to 324 months of incarceration. We affirmed the
convictions, but vacated Mitchell's sentence for consideration
of a downward adjustment for his role in the offense. See
United States v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995). On
remand, the district court resentenced Mitchell to 151
months, and we affirmed in an unpublished order. See
United States v. Mitchell, 107 F.3d 923 (D.C. Cir. 1997)
(table).

On December 1, 1997, Mitchell filed a pro se motion for
habeas corpus in the district court under 28 U.S.C. s 2255.
He asserted two claims of ineffective assistance of counsel:
(1) ineffective assistance because his attorney at trial, Profes-
sor James Robertson, did not locate and interview a Ms.
Sonya Allen as a potential witness for trial who could have
corroborated his defense, and (2) per se ineffective assistance
of counsel because Robertson was suspended from the prac-

tice of the law in the District of Columbia during the repre-
sentation period.1

The district court denied the motion. Mitchell filed a
notice of appeal without first seeking a certificate of appeala-
bility as required by 28 U.S.C. s 2253(c)(1) (Supp. IV 1998).
We appointed counsel for Mitchell, and directed the parties,
while not otherwise limited, to address the following ques-
tions: (1) whether a COA may be issued by this court in the
first instance or instead must initially be sought from the
district court; and (2) whether appellant has "made a sub-
stantial showing of the denial of a constitutional right" re-
quired for the grant of a COA.

II. Certificate of Appealability

A. Who Decides

The requirement that a defendant seek a COA to appeal
the denial of a s 2255 petition stems from 28 U.S.C.
s 2253(c)(1), which states in relevant part:

Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from ... the final order in a proceeding under
section 2255.

Rule 22(b) of the Federal Rules of Appellate Procedure
prescribes the procedure for seeking a COA:

(1) In a ... 28 U.S.C. s 2255 proceeding, the applicant
cannot take an appeal unless a circuit justice or a circuit
or district judge issues a certificate of appealability un-
der 28 U.S.C. s 2253(c). If an applicant files a notice of
appeal, the district judge who rendered the judgment

__________
1 Mitchell also claims that his equal protection rights were violat-
ed because federal statutes punish crack cocaine crime more severe-
ly than cocaine powder crimes. This same argument was squarely
rejected in United States v. Johnson, 40 F.3d 436 (D.C. Cir. 1994),
and in Mitchell's direct appeal. See Mitchell, 49 F.3d at 781 n.5.
Mitchell's citation of events which occurred after the governing
statutes were enacted adds nothing.

must either issue a certificate of appealability or state
why a certificate should not issue. The district clerk
must send the certificate or statement to the court of
appeals with the notice of appeal and the file of the
district-court proceedings. If the district judge has de-
nied the certificate, the applicant may request a circuit
judge to issue the certificate.

(2) A request addressed to the court of appeals may be
considered by a circuit judge or judges, as the court
prescribes. If no express request for a certificate is
filed, the notice of appeal constitutes a request addressed
to the judges of the court of appeals.

As a threshold matter, 28 U.S.C. s 2253(c)(1) does not
clearly state that district court judges are empowered to issue
COAs--it simply says "circuit justice or judge." However,
Rule 22(b) contemplates that "judge" means district judge,
and all the circuits addressing the issue have held that
district court judges have the power to issue COAs. We join
these circuits. See Hunter v. United States, 101 F.3d 1565,
1573-83 (11th Cir. 1996) (en banc) (containing a detailed
discussion of the issue), overruled in part on other grounds
by Lindh v. Murphy, 521 U.S. 320 (1997); see also Grant-
Chase v. Commissioner, New Hampshire Dep't of Correc-
tions, 145 F.3d 431, 435 (1st Cir.), cert. denied, 525 U.S. 941
(1998); Lozada v. United States, 107 F.3d 1011, 1015-17 (2d
Cir. 1997), overruled on other grounds by United States v.
Perez, 129 F.3d 255 (2d Cir. 1997); United States v. Eyer, 113
F.3d 470, 472-74 (3d Cir. 1997); Else v. Johnson, 104 F.3d 82,
82-83 (5th Cir. 1997); Lyons v. Ohio Adult Parole Auth., 105
F.3d 1063, 1073 (6th Cir. 1997), overruled in part on other
grounds by Lindh v. Murphy, 521 U.S. 320 (1997); Tiedeman
v. Benson, 122 F.3d 518, 522 (8th Cir. 1997); United States v.
Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997); United States
v. Riddick, 104 F.3d 1239, 1240-41 (10th Cir. 1997), overruled
on other grounds by United States v. Kunzman, 125 F.3d
1363 (10th Cir. 1997).

The parties are in accord that the language of Rule 22(b)
contemplates that the district court should rule in the first

instance on whether a COA should be issued, as other courts
have held. See, e.g., Lozada, 107 F.3d at 1016-17; Kincade v.
Sparkman, 117 F.3d 949, 953 (6th Cir. 1997). We agree.
The language of the Rule prescribes that upon the filing of
the notice of appeal, the district court "must" decide the COA
issue and the district court clerk "must" provide appropriate
documentation to the court of appeals. The Rule continues
on to state that upon denial by the district court, a request
may be made of a circuit judge. We therefore hold that Rule
22(b) requires initial application in the district court for a
COA before the court of appeals acts on a COA request.

Rule 22(b)(2) provides that when an appellant fails to file an
express request for a COA with the court of appeals, the
notice of appeal constitutes such a request to the judges of
the court of appeals. Normally, we will examine such re-
quests after the district court has ruled, see Edwards v.
United States, 114 F.3d 1083, 1084 (11th Cir. 1997), and we
will generally transfer COA requests to the district court
when the district court has not ruled. However, any defect in
procedure occasioned by the appellant's failure to make appli-
cation in this case is not jurisdictional, given the language of
28 U.S.C. s 2253(c)(1), and Rule 22(b)(2). Therefore, in view
of the late stage in the proceedings at which we came to
confront the question, we will proceed to consider whether to
grant the COA ourselves. Insofar as the failure of the
appellant to make application to the district court creates any
obstacle, we note that under Federal Rule of Appellate Proce-
dure 2, we have the authority to "suspend any provision of"
the Rules of Appellate Procedure, including Rule 22(b)(1)
except in limited instances not here relevant. We therefore
exercise that authority and proceed.

B. Merits of COA Request

To determine whether Mitchell should receive a COA to
pursue his appeal, we ask whether he "has made a substantial
showing of the denial of a constitutional right." 28 U.S.C.
s 2253(c)(2). "[T]he petitioner need not show that he should
prevail on the merits.... Rather, he must demonstrate that

the issues are debatable among jurists of reason; that a court
could resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to proceed
further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)
(internal quotation marks omitted); see also Byrd v.
Henderson, 119 F.3d 34, 36 n.3 (D.C. Cir. 1997) (holding that
Barefoot standard applies to COA requests). Under this
standard, we grant Mitchell's COA request on his claim of per
se ineffective assistance of counsel.

Normally, to make a successful ineffective assistance of
counsel claim under the Sixth Amendment, a defendant must
show "(1) that counsel's performance was deficient, falling
'below an objective standard of reasonableness,' and (2) that
the deficient performance prejudiced the defendant, depriving
him of a fair trial." United States v. Bruce, 89 F.3d 886, 893
(D.C. Cir. 1996) (quoting Strickland v. Washington, 466 U.S.
668, 688 (1984)). Mitchell formulates two theories of ineffec-
tiveness. The first is that Robertson's trial performance was
deficient because he failed to produce Sonya Allen as a
witness who would have, he claims, corroborated his defense.
Certainly, as we observed in United States v. Debango, 780
F.2d 81 (D.C. Cir. 1986), "[t]he complete failure to investigate
potentially corroborating witnesses ... can hardly be consid-
ered a tactical decision." Id. at 85. But, as we further
recalled in Debango, "[e]ven if counsel's performance fell
below prevailing professional norms ... Strickland requires
that a defendant establish prejudice." Id. The prejudice
that Mitchell claims arose from the absence of Allen's testi-
mony, however, was plainly insufficient to satisfy the second
prong of the Strickland test.2 To bypass this hurdle, Mitchell

__________
2 Allen would have testified that Mitchell was not present when
Calvin Stevens, one of Mitchell's co-conspirators, retrieved a bag
from the attic of the house he shared with Allen and removed a
bundle of money from it. Mitchell argues that because this evi-
dence partially contradicts Stevens's trial testimony and partially
corroborates the contradictory testimony of another co-conspirator,
Paul Campbell, it would have cast doubt on his knowledge of illegal
activity and participation in the conspiracy. But as the district
court pointed out Ms. Allen's testimony was cumulative, and other

invokes the rule that prejudice can be presumed "if a defen-
dant can show that 'a conflict of interest actually affected the
adequacy of [the attorney's] representation....' " Bruce, 89
F.3d at 893 (quoting Cuyler v. Sullivan, 446 U.S. 335, 349
(1980)). Claiming that Robertson was suspended from the
practice of law in the District of Columbia during Mitchell's
trial, appellant argues that Robertson had a conflict of inter-
est because he was preoccupied with his own disciplinary
proceedings and fear of sanctions and wanted to keep his
status concealed, so he did not expend extra funds reimbursa-
ble under the Criminal Justice Act as appointed counsel to
seek out Ms. Allen.

The district court did not resolve the issue of Robertson's
bar status. The court noted that Robertson was in fact
admitted to practice before the district court during the
relevant period, but accepted the proposition that this admis-
sion may have been under questionable circumstances. The
district court thus assumed for the sake of argument that
Robertson was suspended. In any event, the suspension was
not in any way related to Robertson's conduct in representing
Mitchell.

Even if we also assume that Robertson was suspended,
Mitchell's conflict of interest scenario is simply too hypotheti-
cal to gain him relief. There is no evidence that Robertson
would have needed extraordinary funds to find Allen or that
such expenditures would somehow trigger a review of his bar
qualifications. We have been careful to guard against "defen-
dants' attempts to force their ineffective assistance claims
into the 'actual conflict of interest' framework ... and there-
by supplant the strict Strickland standard with the far more
lenient Cuyler test." Bruce, 89 F.3d at 893; see also United
States v. Taylor, 139 F.3d 924, 930-32 (D.C. Cir. 1998).
Mitchell's conflict theory is such an attempt. See United
States v. Maria-Martinez, 143 F.3d 914, 916-17 (5th Cir.
1998) ("[A]n undisclosed lack of credentials ... provide[s] an
incentive for lackluster representation, the theory goes, be-

__________
evidence in the form of a taped conversation between two of the co-
conspirators casts serious doubt on Mitchell's theory.

cause the attorney will be concerned about drawing attention
to himself and encouraging an inquiry into his background."),
cert. denied, 525 U.S. 1107 (1999). We could as easily say
that far from having a conflict of interest, Robertson had "an
incentive to do his best" to avoid a later ineffective assistance
claim and the exposure of his status. United States v.
Leggett, 81 F.3d 220, 226-27 (D.C. Cir. 1996); see also Vance
v. Lehman, 64 F.3d 119, 126 (3d Cir. 1995). We conclude that
Mitchell's ineffectiveness claim on these grounds does not rise
to the level of a substantial showing of the denial of a
constitutional right.

Mitchell's second argument in support of his ineffective
assistance of counsel claim has slightly more promise. Based
on a different line of precedent, he contends that Robertson's
suspension calls for a finding of per se ineffectiveness. In
Harrison v. United States, 387 F.2d 203 (D.C. Cir. 1967),
rev'd on other grounds, 392 U.S. 219 (1968), where an ex-
convict posed as an attorney, we held that the requirements
of the Sixth Amendment "are not satisfied when the accused
is 'represented' by a layman masquerading as a qualified
attorney." Id. at 212. Mitchell candidly admits that other
courts have rejected a per se ineffectiveness rule for attor-
neys who have been licensed to practice law and later subject-
ed to discipline such as suspension, but claims that Harrison
could support such a rule in an issue of "first impression" in
this circuit. In his view, a generous reading could extend
Harrison and hold that a suspended attorney is not a "quali-
fied attorney" because he is not currently "admitted to the
practice of the law, no matter how intelligent or well educated
he may be." Id.

It appears that most courts facing the issue have held that
suspension or disbarment alone is not enough to make an
attorney per se ineffective. See, e.g., Reese v. Peters, 926
F.2d 668, 670 (7th Cir. 1991); Waterhouse v. Rodriguez, 848
F.2d 375, 383 (2d Cir. 1988); United States v. Mouzin, 785
F.2d 682, 696-97 (9th Cir. 1986); United States v. Myles, 10
F. Supp. 2d 31, 36 (D.D.C. 1998); see generally Jay M. Zitter,
Annotation, Criminal Defendant's Representation by Person
Not Licensed to Practice Law as Violation of Right to

Counsel, 19 A.L.R. 5th 351 (1994). However, a few jurists
appear to have thought otherwise. See In re Johnson, 822
P.2d 1317, 1323-24 (Cal. 1992) (applying California Constitu-
tion); Ohio v. Newcombe, 577 N.E.2d 125, 126 (Ohio Ct. App.
1989); Mouzin, 785 F.2d at 703-04 (Ferguson, J., dissenting).
To more clearly define the contours of the issue in this circuit,
we grant a COA on Harrison's claim of per se ineffective
assistance of counsel.

III. Per Se Rule

We decline appellant's invitation to extend the per se
ineffectiveness rule beyond cases in which a defendant is
represented by a person never properly admitted to any bar.
See, e.g., Solina v. United States, 709 F.2d 160, 168-69 (2d
Cir. 1983); United States v. Novak, 903 F.2d 883, 886-90 (2d
Cir. 1990). In fact, we earlier intimated such a limitation in
United States v. Butler, 504 F.2d 220 (D.C. Cir. 1974).
There, appellant's trial counsel had not been admitted to the
local bar, and we stated that "[s]tanding alone, the mere fact
of a trial attorney's nonmembership in the local bar is not
necessarily sufficient to find that the right to effective counsel
was breached." Id. at 223. Instead, we found counsel inef-
fective in Butler only because in addition to the lack of bar
membership, there were numerous instances of attorney er-
ror at trial. See id. at 224.

We hold that the fact of suspension does not, by itself,
render counsel ineffective under the Sixth Amendment. In-
stead, the normal Strickland rule applies and a defendant
must meet his burden of showing deficient performance at
trial which resulted in prejudice. See Mouzin, 785 F.2d at
696-97. As the Ninth Circuit said in Mouzin:

Neither suspension nor disbarment invites a per se rule
that continued representation in an ongoing trial is con-
stitutionally ineffective. Admission to the bar allows us
to assume that counsel has the training, knowledge, and
ability to represent a client who has chosen him. Contin-

 ued licensure normally gives a reliable signal to the
public that the licensee is what he purports to a be--an
attorney qualified to advise and represent a client.

Id. at 698.

As time passes, some admitted members of the bar incur
sanctions of suspension or disbarment which leave them no
longer entitled to lawfully practice the profession. As the
Ninth Circuit noted, sometimes this "discipline flows from
revealed incompetence or untrustworthiness or turpitude
such as to deserve no client's confidence." Id. Sometimes,
however, the grounds of suspension are sufficiently unrelated
to the previously prevailing presumption of competence that
no inference can be drawn of ineffectiveness in representa-
tion. Therefore, there is no logical reason to extend the per
se ineffectiveness rule beyond those instances already covered
in the Harrison presumption--when a defendant is repre-
sented by a person never properly admitted to the practice of
law. Therefore, our examination in a case such as this
involving a suspended attorney is governed by Strickland v.
Washington, and requires the showing of incompetence and
prejudice that Mitchell has not made.3

Other circuits addressing the issue have reached similar
results. Instead of extending a per se rule to cover various
states of attorney licensure, courts have considered the facts
of the cases to determine if counsel was ineffective. See
Waterhouse, 848 F.2d at 383; Vance, 64 F.3d at 122-26;
Roach v. Martin, 757 F.2d 1463, 1479-80 (4th Cir. 1985);
Maria-Martinez, 143 F.3d at 916-19; Reese, 926 F.2d at 669-
70; United States v. Hoffman, 733 F.2d 596, 599-601 (9th Cir.
1984); United States v. Stevens, 978 F.2d 565, 568-69 (10th
Cir. 1992). Therefore, although appellant's per se ineffective
assistance claim survives the hurdle of the certificate of
appealability, it merits no relief.

__________
3 A detailed discussion of the facts surrounding Professor Robert-
son's disciplinary difficulties is recounted in United States v. Myles,
10 F. Supp. 2d 31 (D.D.C. 1998).

 IV. Conclusion

In summary, we hold that the district court has the power
to issue certificates of appealability and is required to consid-
er and make a decision on the COA issue before the court of
appeals will address it. We further hold that although appel-
lant was entitled to a COA on his claim of per se ineffective
assistance of counsel, his claim fails on the merits. To the
extent we exercise jurisdiction to review the order of the
district court, it is

Affirmed.