United States Court of Appeals
FOR T HE D ISTRICT OF CO LUM BIA CIR CUIT
Argued November 15, 2004 Decided February 1, 2005
No. 02-3082
UNITED STATES OF AMERICA ,
APPELLEE
v.
RONALD JAMES TOMS, A/K/A BLOCK,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 93cr00367-01)
Elaine J. Mittleman argued the cause for appellant. On the
briefs were Pleasant S. Brodnax, III and Mary E. Davis.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and John R. Fisher and Thomas J.
Tourish, Jr., Assistant U.S. Attorneys. Roy W. McLeese, III,
Assistant U.S. Attorney, entered an appearance.
Before: GINSBURG, Chief Judge, and TATEL and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
2
ROBERTS, Circuit Judge: Appellant Ronald Toms appeals
the district court’s denial of his motion under 28 U.S.C. § 2255
to vacate convictions for several drug and firearms offenses. He
argues that the deficient performance of his trial attorney
deprived him of his constitutional right to effective assistance of
counsel. We conclude that the district court did not err in
denying Toms’s motion or in refusing to conduct an evidentiary
hearing, and affirm.
I.
In November 1993, a grand jury returned a superseding
indictment against Toms and two co-defendants, Jimmy Thomas
and Keith Bradley. The first count of the indictment charged all
three men with conspiracy to distribute and to possess with
intent to distribute 50 grams or more of cocaine base from 1987
to October 1993. 21 U.S.C. § 846. Three counts charged Toms
and Bradley with offenses stemming from the circumstances of
their September 10, 1993 arrests: possession of 50 grams or
more of cocaine base with intent to distribute, 21 U.S.C.
§§ 841(a)(1) & (b)(1)(A)(iii); using or carrying a firearm during
and in relation to a drug trafficking crime, 18 U.S.C. § 924(c);
and carrying a pistol without a license, D.C. CODE ANN .
§§ 22-3204(a) & 105 (1981). Toms and Thomas were also
charged with distributing cocaine base on two separate occasions
in July and September 1993. Thomas and Bradley each pled
guilty. Toms chose to proceed to trial.
At trial, the government presented evidence showing that
from 1987 to 1993, Toms supplied crack cocaine to Thomas,
Bradley, and ten to fifteen other street-level dealers in Washing-
ton, D.C. Thomas testified that he had received drugs from
Toms “hundreds” of times, Trial Tr. 1/13/95 at 124, and saw
Toms supplying other dealers on many occasions. This account
was corroborated by the testimony of two other prosecution
witnesses who at one time or another sold drugs in the same
3
vicinity as Toms. Testimony from several law enforcement
agents also indicated that, on four occasions between 1987 and
1992, Toms had been stopped in cars in which drugs, guns, or
large amounts of cash were found.
The government also offered evidence regarding Toms’s
arrest. In September 1993, law enforcement officers had Toms
and Bradley under surveillance. On September 10, the officers
were following a vehicle Toms was driving with Bradley as a
passenger. When Toms began speeding and weaving in and out
of traffic, the officers pulled the vehicle over. After removing
Toms and Bradley, the officers noticed a loaded nine-millimeter
handgun on Bradley’s seat. Searches at the scene revealed
$2,000 in cash on Toms and another $8,000 stuffed in an air vent
of the vehicle. The vehicle was impounded and searched more
thoroughly. A drug-sniffing dog found a plastic bag containing
67.8 grams of cocaine base under the back seat. Evidence
indicated that the vehicle belonged to Toms.
Faced with a strong case against his client, Toms’s attorney
pursued several lines of defense. First, he sought to cast doubt
on Thomas’s testimony. He noted that Thomas was cooperating
with the government and had made inconsistent statements in an
earlier affidavit. Two defense witnesses also stated that Thomas
had told them he was supplied with drugs by a source in Detroit.
Second, the defense called Bradley, who testified that the drugs
and gun found in the vehicle belonged to him and that Toms was
unaware of them. Finally, Toms himself took the stand, in part
to explain that the large sum of cash recovered at the time of his
arrest was intended for the production of a compact disc for a
recording company he owned.
A jury convicted Toms on the conspiracy charge, the charge
of possession with intent to distribute, and the two firearms
charges. He was acquitted of the two counts of cocaine distribu-
tion. The court sentenced Toms to concurrent life sentences for
4
the drug counts, followed by a consecutive five-year sentence on
the federal weapons charge. He also received a one-year
sentence on the second weapons charge, concurrent with the
other sentences. We affirmed the conviction and sentence on
appeal. United States v. Toms, 136 F.3d 176 (D.C. Cir. 1998).
Toms subsequently filed a motion under 28 U.S.C. § 2255
asking the district court to vacate his convictions. He claimed
that his attorney had committed a host of errors at trial, depriving
him of his right to effective assistance of counsel. Toms pressed
two principal arguments: first, that his attorney elicited damag-
ing testimony about the criminal activities of Toms’s family and
friends; and second, that due to inadequate preparation, counsel
was forced to stipulate to damaging evidence and failed to
subpoena two defense witnesses whose testimony might have
been helpful.1 In addition to the claim of ineffective assistance,
Toms argued that the jury had been contaminated when it was
shown an exhibit that had not been admitted into evidence. In
a supplemental motion, Toms restyled this claim as a charge that
the prosecution had failed to disclose the exhibit as required by
Brady v. Maryland, 373 U.S. 83 (1966).2
The district court found no merit to Toms’s ineffective
assistance claim and rejected his request for an evidentiary
hearing. The same judge who had presided over Toms’s trial
found that counsel was prepared and that his decisions to elicit
1
In addition to the contentions discussed in the text, Toms argued
that counsel did not adequately cross-examine Thomas because of a
potential conflict of interest, did not object to the prosecution’s cross-
examination of Bradley, neglected to build a record for appeal, and
failed to call a third witness who would have testified that Toms was
traveling to a recording studio at the time of his arrest. He renews
these claims on appeal.
2
Toms also raised other claims not considered here because they
were rejected by the district court and not renewed on appeal.
5
certain testimony about Toms’s associates and not to subpoena
the witnesses were part of a trial strategy, falling within the
“wide range of reasonable professional assistance.” Mem. Op.
at 7. Furthermore, the court found that any errors by counsel
were not prejudicial, given “the government’s overwhelming
evidence” against Toms. Id. at 14. The court also rejected
Toms’s Brady claim, on the ground that there was no reasonable
probability that the result in the case would have been different
had the exhibit been disclosed. Id. at 11.
On appeal, Toms renews his ineffective assistance and
Brady claims and challenges the district court’s refusal to hold
a hearing on his section 2255 motion.
II.
It is well-established that the Sixth Amendment right to
counsel comprehends “the right to effective assistance of
counsel,” Strickland v. Washington, 466 U.S. 668, 686 (1984),
and that Sixth Amendment claims may be raised in section 2255
proceedings, Kimmelman v. Morrison, 477 U.S. 365 (1986). A
claim of ineffective assistance of counsel requires two showings:
(1) that counsel’s performance was deficient and (2) that “but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 687, 694.
Our evaluation of counsel’s performance is “highly deferential,”
and we must “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Id. at 689.
The standard under which we review a district court’s
dismissal of a section 2255 petition alleging ineffective assis-
tance is unsettled. Whether counsel’s performance was deficient
and whether any errors were prejudicial are mixed questions of
law and fact, id. at 698; United States v. Weaver, 234 F.3d 42, 46
(D.C. Cir. 2000); United States v. Askew, 88 F.3d 1065, 1070
(D.C. Cir. 1996), but, as we pointed out in Askew, that does not
6
define the proper standard of appellate review. See 88 F.3d at
1070–71. Determinations of mixed questions are sometimes
reviewed de novo, see, e.g., Ornelas v. United States, 517 U.S.
690, 695–99 (1996) (reasonable suspicion and probable cause),
and sometimes only for abuse of discretion, see, e.g., Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 401–05 (1990) (rulings
under Federal Rule of Civil Procedure 11); Pierce v. Under-
wood, 487 U.S. 552, 557–63 (1988) (whether legal positions are
“substantially justified” under Equal Access to Justice Act).
While other circuits have concluded that de novo review of
district court rulings on ineffective assistance of counsel claims
is appropriate, see, e.g., Cooper v. United States, 378 F.3d 638,
640 (7th Cir. 2004); Pham v. United States, 317 F.3d 178, 182
(2d Cir. 2003), we have thus far expressly declined to fix the
appropriate standard, not having been confronted with a case in
which the standard made a difference. See, e.g., Weaver, 234
F.3d at 46.
We persist in our agnosticism on the appropriate standard of
review in this case. The parties have not joined issue on the
question, and we are reluctant to decide such an important
question in the absence of briefing and argument on it. It is
unnecessary for us to do so, because we find that Toms’s claim
fails even under the more searching de novo standard.
A. Toms first argues that his attorney’s lack of preparation
caused him to enter into stipulations harmful to the defense. In
particular, Toms objects to three stipulations: first, that cocaine
residue was found on the floor and seat of the vehicle Toms was
driving the day of his arrest and on the two rolls of cash recov-
ered from the vehicle and Toms; second, that Toms may have
attempted to alter his normal handwriting in a sample he
provided to the FBI; and third, that Bradley, a key defense
witness, was convicted for attempted drug possession in 1987,
when in fact the conviction had been expunged.
7
Mindful that we are to “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance,” Strickland, 466 U.S. at 689, we do not
think that counsel’s decisions with respect to the first two
stipulations were unreasonable. See United States v. Gaskin,
364 F.3d 438, 468 (2d Cir. 2004) (“counsel’s decision to
stipulate to certain evidence, like his decisions to offer or object
to evidence, involves a strategic choice, which is ‘virtually
unchallengeable’ if made after thorough investigation”) (quoting
Strickland, 466 U.S. at 690). FBI agents were prepared to testify
concerning the substance of the first two stipulations; Toms does
little to explain what his counsel might have done had those
witnesses been forced to do so. At most, he suggests that
counsel could have cross-examined the agents about the amount
of cocaine residue found in the vehicle or about the general
prevalence of cocaine residue on paper currency. Whether these
lines of questioning would have yielded any gains for Toms or
only highlighted damning evidence is a matter of speculation and
precisely the sort of post hoc judgment that Strickland admon-
ishes us to avoid.
Toms nevertheless contends that the drug residue stipulation
was especially egregious in that it was the “only link between
appellant and the drugs seized” from the car. Appellant’s Br. at
11. Whether or not this assertion is true, the argument assumes
too rosy a picture of what would have transpired without the
stipulation. Counsel did not face a choice between stipulating
and having no evidence presented at all, but between stipulating
and having live testimony about the cocaine residue presented by
an FBI agent. While cross-examination may have helped Toms,
he may have benefitted still more from the stipulation, see
United States v. Crowder, 141 F.3d 1202, 1207 (D.C. Cir. 1998)
(en banc) (“Even when coupled with a jury instruction that the
fact stipulated must be considered proven, a stipulation cannot
give the Government everything the evidence could show”
8
(internal quotation marks omitted)), and we cannot say that
counsel’s decision was unreasonable. See United States v.
Geraldo, 271 F.3d 1112, 1116 (D.C. Cir. 2001) (“The defendant
bears the burden of proving that his lawyer made errors ‘so
serious that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment’ and that counsel’s
deficient performance was prejudicial.” (quoting Strickland, 466
U.S. at 687)).
The stipulation to Bradley’s expunged conviction presents
a closer question. The government does not argue that counsel
acted reasonably in stipulating to a conviction that did not exist;
the erroneous stipulation could easily have been avoided with
careful investigation. The government does argue, however, and
we agree, that no prejudice can be shown. On the stand, Bradley
denied ever having been convicted of a crime as an adult before
entering his guilty plea. The government then impeached him on
cross-examination with multiple prior convictions, including the
expunged 1987 conviction. In fact, Bradley had three other
convictions — two for cocaine possession and one for a weap-
ons charge — to which Toms’s counsel appropriately stipulated.
It is doubtful that the inclusion of one additional expunged
conviction caused even incremental harm to Bradley’s credibil-
ity, and entirely farfetched that the outcome of Toms’s trial
would have been different without the stipulation. What is
more, Bradley was called to the stand in part to testify that he,
not Toms, possessed the drugs and gun found in the vehicle
when he and Toms were arrested. Another prior conviction for
attempted drug possession seems just as likely to make Bradley’s
testimony to that effect more, not less, credible.
Toms next argues that, due to inadequate preparation, his
trial counsel failed to secure the presence of several witnesses
whose testimony would have helped his defense. Two witnesses
who were expected to testify about the activities of Toms’s
recording company were never subpoenaed and failed to appear
9
at trial. According to Toms, one of the witnesses would have
stated that he sold more than $10,000 worth of tapes to Toms,
and such testimony could have explained what Toms intended
to do with the cash found on him at the time of his arrest (buy
more tapes).
The district court rejected Toms’s claims, finding that
counsel’s decision not to subpoena the additional witnesses was
strategic and, in any case, did not prejudice the defense. Without
addressing the question of deficient performance, the testimony
of these witnesses would not have altered the outcome of
Toms’s trial. The existence of Toms’s recording company was
not in dispute; the prosecution readily acknowledged as much in
closing argument. Indeed, the government even elicited testi-
mony from an FBI agent about documents showing that Toms’s
company had purchased $4,000 in audiotapes. The testimony of
the two witnesses would therefore have only offered unnecessary
evidence on an issue no longer in doubt. See United States v.
Mitchell, 216 F.3d 1126, 1131 n.2 (D.C. Cir. 2000) (no prejudice
where witness’s testimony would have been cumulative). More
important, as their testimony would not have shown that Toms’s
company produced any income, it would have done nothing to
illuminate the issue of where Toms got the cash in the first place.
See United States v. Moore, 104 F.3d 377, 391 (D.C. Cir. 1997)
(no ineffectiveness in failing to subpoena a witness whose
testimony was “tangential at best”).
Toms argues in a similar vein that trial counsel was ineffec-
tive in not calling a witness named Walter Cloud, who appar-
ently would have testified that he was expecting Toms at a
recording studio the day he was arrested. According to Toms,
Cloud was promised in the defense’s opening statement, and,
when he failed to appear, the jury likely concluded that Toms’s
story about the recording studio was unsupported. This claim is
without merit. First, it is not at all clear that counsel promised
to call Cloud. In his opening statement counsel said, “Toms was
10
late for a video session — he had video session scheduled; we’ll
call witnesses on that.” Trial Tr. 1/11/95 at 58. And, in fact,
two defense witnesses — Toms and Bradley — did testify on
this point. There is no reason counsel should be thought to have
performed deficiently simply because he did not call a third. See
United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999) (“The
decision whether to call any witnesses on behalf of the defen-
dant, and if so which witnesses to call, is a tactical decision of
the sort engaged in by defense attorneys in almost every trial.”
(internal quotation marks omitted)). Moreover, Cloud’s
testimony would hardly have altered the outcome of the trial.
Like that of the unsubpoenaed witnesses, his testimony would
have only confirmed what the government was willing to
acknowledge — that Toms owned a recording company — and
done nothing to explain the source of Toms’s money. 3
Toms further argues that his attorney was ineffective in
failing to challenge the government’s suggestion, in its cross-
examination of Bradley, that Toms had purchased Bradley’s
cooperation by paying for his attorney. The record, however,
reveals that the government had a good faith basis for this line
of questioning. Thomas had already testified that Toms offered
$10,000 in exchange for Thomas’s cooperation, and the govern-
3
Toms also argues that counsel failed to deliver on an opening-
statement promise to show that Toms’s fingerprints had not been
found on “any gun, no ammunition, no drugs, period, period, back to
1987.” Trial Tr. 1/11/95 at 55. Counsel unsuccessfully tried to get
the prosecution to stipulate to this, but no prejudice can be shown: the
prosecution’s fingerprint specialist testified that Toms’s fingerprints
were not found on the gun or on the bag containing the drugs, and
there was no other testimony linking Toms’s prints to any gun,
ammunition, or drugs. Indeed, Toms’s counsel highlighted the
absence of fingerprint evidence in closing. See Trial Tr. 1/24/95 at
78.
11
ment had in its possession — and later played for the jury — a
taped phone call in which Bradley was heard telling his girl-
friend to get money from Toms’s mother. Together, this was
enough to support the government’s questioning of Bradley. See
United States v. Sampol, 636 F.2d 621, 658 (D.C. Cir. 1980)
(“the questioner must be in possession of some facts which
support a genuine belief that the witness committed the offense
or the degrading act to which the questioning relates” (internal
quotation marks omitted)). There was therefore nothing
unreasonable about counsel’s decision not to object.
Nor could counsel have successfully argued, as Toms
contends, that the government constructively amended the
indictment — which charged a conspiracy to distribute cocaine
or cocaine base — by introducing evidence of marijuana and
PCP possession. To support a claim of constructive amendment,
he would have needed to show that “the evidence presented at
trial and the instructions given to the jury so modify the ele-
ments of the offense charged that the defendant may have been
convicted on a ground not alleged by the grand jury’s indict-
ment.” United States v. Sayan, 968 F.2d 55, 59–60 (D.C. Cir.
1992) (internal quotation marks omitted) (alteration in original).
Toms’s claim is plausible only because the district court
instructed the jury as to the first element of the conspiracy count
that, to support a guilty verdict, it had to find an agreement “to
distribute or possess with intent to distribute a controlled
substance.” Trial Tr. 1/24/95 at 118. The court’s instruction as
to the second element, however, made clear that the jury had to
find that Toms “knowingly and willfully participated in the
conspiracy” with an intent to distribute “cocaine or cocaine
base.” Id. at 119.
“[I]t is not our task to review only isolated parts of the
charge.” United States v. Perholtz, 836 F.2d 554, 559 (D.C. Cir.
1988); see also Cupp v. Naughten, 414 U.S. 141, 146–47 (1973)
(“a single instruction to a jury may not be judged in artificial
12
isolation, but must be viewed in the context of the overall
charge”). The instructions, read as a whole, required the jury to
find that Toms was engaged in a conspiracy to distribute cocaine
or cocaine base, as alleged in the indictment. A constructive
amendment claim could not have succeeded, and counsel’s
decision not to advance such a claim was therefore not unreason-
able.
Toms’s remaining ineffective assistance arguments are
equally unavailing. He argues that counsel inexplicably elicited
damaging testimony about Bradley from a government witness
and portrayed Toms’s relatives as involved in drug trafficking.
Although this may not have been an ideal line of defense,
Toms’s counsel faced a considerable challenge in explaining
away the suspicious circumstances of his client’s life: the
expensive cars he drove, the money spent on tapes and videos,
and the multiple occasions — particularly the last — in which he
was found in cars with drugs, firearms, or large amounts of cash.
We conclude that these decisions of Toms’s counsel were
tactical, forced on him by the strong case against Toms, and that,
in any event, they did not result in any prejudice.
Nor do we find any merit to the contention that counsel’s
cross-examination of Thomas was impeded by a conflict of
interest. Thomas had once sought to hire Toms’s attorney but,
according to Thomas’s testimony, “couldn’t afford it.” Trial Tr.
1/13/95 at 115. Toms was made aware of the meeting before
trial and agreed to go forward. This, by itself, did not give rise
to the kind of actual conflict of interest required by our cases —
namely, one that constrains an attorney “to make a choice
advancing his own interests to the detriment of his client’s
interest.” United States v. Bruce, 89 F.3d 886, 893 (D.C. Cir.
1996) (internal quotation marks omitted). The prosecutor
elicited the testimony from Thomas to help rebut Toms’s effort
to portray Thomas as “a big-time drug dealer, with lots of
money.” Trial Tr. 1/13/95 at 114. Toms’s counsel explained in
13
a pretrial status conference that he did not remember anything
from the meeting, so there is no reason to think that he was in a
position to rebut Thomas’s testimony. Toms points to no basis
for challenging Thomas’s assertion that he could not afford a
lawyer, so he has not carried his burden of showing that the
alleged conflict “had some negative effect upon his defense.”
United States v. Gantt, 140 F.3d 249, 254 (D.C. Cir. 1998)
(internal quotation marks omitted).
B. We can also easily dispose of Toms’s claim that the
government failed to disclose material exculpatory evidence as
required by Brady. The evidence at issue is a government
photograph of the backseat of Toms’s vehicle after the impound-
ment and subsequent search. In his initial section 2255 motion,
Toms argued that the exhibit was taken into the jury room
despite not being admitted into evidence, thus contaminating the
jury. He subsequently argued, in a supplemental motion, that the
same exhibit contained exculpatory information which the
government should have disclosed to the defense. It is this latter
argument that Toms renews on appeal. We review such Brady
claims de novo. In re Sealed Case (Brady Obligations), 185
F.3d 887, 892 (D.C. Cir. 1999).
We do not know with certainty whether or not, as Toms
claims, the photograph depicts the bag of drugs sitting on the
backseat because the government can no longer find the exhibit.
The government contends that, in any case, the photograph could
not have shown the drugs in their original location because no
photographs were taken until after a drug-sniffing dog had
discovered the drugs and they had been moved. Even assuming
the photograph shows the drugs as they were originally posi-
tioned, however, Toms cannot demonstrate “ ‘a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’ ”
United States v. Bowie, 198 F.3d 905, 908 (D.C. Cir. 1999)
(quoting Kyles v. Whitley, 514 U.S. 419, 433–34 (1995)). There
14
is little reason to believe that the drugs would have been any less
connected with Toms in the jury’s mind if the bag were shown
to have been on top of the backseat instead of under it. The
government’s case certainly did not hinge on the issue. Indeed,
one government witness even stated on cross-examination that
it would have been easier for the passenger (Bradley) than the
driver (Toms) to have placed the drugs under the backseat. Trial
Tr. 1/17/95 at 71. There is simply not a “reasonable probability”
that, had the exhibit been disclosed, it would have altered the
outcome of Toms’s trial.
C. Finally, we reject Toms’s claim that the district court
was required to hold a hearing before ruling on his section 2255
motion. When the judge deciding the section 2255 motion also
presided at petitioner’s trial, the court’s decision not to hold a
hearing is “generally respected as a sound exercise of discre-
tion.” United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir.
1996); see also Sayan, 968 F.2d at 66. Here, Toms does not
point to any information outside the record that would have
substantially assisted the district court in its disposition and thus
perhaps necessitated a hearing. We therefore see no reason to
depart from our usual practice in this case.
* * *
Toms’s attorney had the difficult task of rebutting the
prosecution’s strong case against his client—in particular, the
stubborn fact that the car Toms was driving at the time of his
arrest, shown to belong to him, contained a nine-millimeter
pistol, thousands of dollars in cash, and 67.8 grams of cocaine
base. To that end, counsel sought to undermine the govern-
ment’s witnesses and dissociate his client from the physical
evidence. While Toms may now find much to criticize in those
efforts, his contentions, taken singly or together, do not amount
to a viable claim of ineffective assistance of counsel.
Affirmed.