Bryant v. Scott

United States Court of Appeals,

Fifth Circuit.

No. 93-1003.

R.L. BRYANT, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Dept. of Criminal Justice,
Institutional Division, Respondent-Appellee.

Aug. 18, 1994.

Appeal from the United States District Court for the Northern
District of Texas.

Before GARWOOD and EMILIO M. GARZA, Circuit Judges, and NOWLIN,*
District Judge.

EMILIO M. GARZA, Circuit Judge:

Appellant, R. L. Bryant, was convicted of armed robbery and

sentenced to life imprisonment by the state district court in Palo

Pinto County, Texas. After exhausting state court remedies, Bryant

petitioned for federal habeas corpus relief, pursuant to 28 U.S.C.

§ 2254 (1988), on claims of ineffective assistance of counsel and

improper identification procedures. The United States magistrate

judge recommended habeas relief based on Bryant's claim of

ineffective assistance of counsel. The district court conducted an

evidentiary hearing and denied habeas relief, holding that Bryant

received effective assistance at trial, and was not subjected to

impermissibly suggestive identification procedures. Bryant

appeals, arguing that his trial counsel was ineffective for: (a)

failing to investigate alibi witnesses; (b) not interviewing

*
District Judge of the Western District of Texas, sitting by
designation.

1
eyewitnesses to the robbery; and (c) not interviewing the

codefendant who offered to exonerate Bryant. We reverse and

remand.

I

On May 14, 1982, two men robbed the North American Phillips

Federal Credit Union in Mineral Wells, Texas. The perpetrators

stole payroll checks and $2,000 in cash. Cindy Carpenter, the

credit union's branch manager, was shot in the elbow during the

robbery and later identified the gunman as Bryant. Ronnie Berkins

was the other eyewitness to the robbery, who also identified

Bryant, and testified that Bryant showed him a gun while leaving

the credit union.

Bryant was indicted for armed robbery by a grand jury in Palo

Pinto County, Texas. Bryant was later arrested and detained in

Oakland, California, for a parole violation unrelated to this case.

The State of Texas moved for Bryant's extradition from California,

where Paul Trudell, from the Alameda County Public Defender's

Office, represented Bryant in the ensuing extradition proceedings.

The public defender's office investigated Bryant's whereabouts on

the day of the robbery. Several potential alibi witnesses reported

that Bryant was in California at or near the time of the robbery.

In particular, Stanley Woods, Bryant's employer in California,

indicated that Bryant began working for him on May 13 or May 14,

1982 and worked until the end of the month. Woods did not state

that he actually saw Bryant on May 14, 1982. Harold Wilson stated

that Bryant was in California at the time of the robbery, where

2
Wilson paid him $100 towards the purchase of a car engine. Teresa

Wilson also stated that Bryant sold her husband a car engine in

California, but she was not sure whether this transaction took

place on May 14 or May 15, 1982. At Bryant's first extradition

hearing, the Oakland Municipal Court found that Bryant could not

have been in Texas on the day of the robbery and, therefore, the

court did not extradite him to Texas. However, after a second

hearing before the Hayward Municipal Court, Bryant was extradited

to Texas to stand trial in this case.

On January 12, 1983, John D. Moore was appointed to represent

Bryant. At their first meeting, Bryant told Moore that he wanted

to subpoena several "material witnesses" from California and other

places outside Texas. Despite requests from Moore, Bryant never

disclosed the names of any potential alibi witnesses until the

pretrial hearing on Friday, March 18, 1983. At the hearing, Bryant

testified that Stanley Woods and "Mr. and Mrs. Wilson" knew he was

in California at the time of the robbery. Moore spoke with Judge

Fitts about the procedure for subpoenaing out-of-state witnesses,

but Moore never contacted any of the potential alibi witnesses

before trial.

On Monday, May 21, 1983, the trial court denied Bryant's pro

se motion for continuance1 and convicted him of armed robbery. The

Texas Court of Appeals at Eastland affirmed Bryant's conviction,

1
Although Moore represented Bryant at trial, Bryant filed
his own pretrial motions, including a motion for continuance.
Bryant also filed a pro se motion for new trial on April 6, 1983,
which the trial court denied.

3
and Bryant did not seek discretionary review from the Texas Court

of Criminal Appeals. Responding to one of Bryant's state petitions

for a writ of habeas corpus, the Texas Court of Criminal Appeals

ordered the trial court to develop additional facts in connection

with Bryant's claim of ineffective assistance of counsel. The

trial court found that Bryant had not supplied enough specific

information about alibi witnesses before trial and concluded that

Moore was effective as counsel.

After exhausting state remedies, Bryant petitioned for federal

habeas corpus relief, pursuant to 28 U.S.C. § 2254 (1988). The

United States magistrate judge recommended that Bryant be granted

habeas relief on his claim of ineffective assistance of counsel and

did not reach the claim of impermissible identification procedures.

The magistrate judge held that Moore breached his "duty to

investigate [Bryant's] alibi witnesses which [Bryant] has

consistently maintained from his pre-trial hearing in 1983

throughout all his pro se pleadings to the present." The district

court conducted an evidentiary hearing on Bryant's claims of

ineffective assistance of counsel and improper identification. The

district court held that Moore was "not ineffective in failing to

discover Bryant's potential alibi witnesses, considering that

Bryant refused to provide the necessary information to allow them

to even begin to search until less than 72 hours before trial."

The district court, therefore, denied habeas relief. Bryant

appeals, contending that he received ineffective assistance of

counsel.

4
 II

Bryant argues that the district court erred in holding that

he received effective assistance of counsel at trial. Bryant

alleges that his appointed counsel, John D. Moore, was ineffective

because he failed to interview or investigate crucial witnesses in

the case, including: (a) alibi witnesses; (b) eyewitnesses to the

crime; and (c) the codefendant who offered to exonerate Bryant.2

"[A] state court's ultimate conclusion that counsel rendered

effective assistance is not a fact finding to which a federal court

must grant a presumption of correctness under 28 U.S.C. § 2254(d),

but instead is a mixed question of law and fact." Black v.

Collins, 962 F.2d 394, 401 (5th Cir.), cert. denied, --- U.S. ----,

112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). We therefore independently

decide whether counsel's conduct passes constitutional muster.3

2
John D. Moore was first appointed as Bryant's counsel.
After Moore requested additional assistance, the court appointed
Mike A. Smiddy to assist Moore in Bryant's defense. Smiddy's
conduct is not at issue on appeal, except to the extent that he
assisted Moore from the time of the pretrial hearing until the
completion of trial. As a matter of convenience, we only refer
to Moore in this opinion, even when both Smiddy and Moore acted
as Bryant's counsel.
3
However, the subsidiary findings of a state court are
entitled to a presumption of correctness under § 2254(d), Andrews
v. Collins, 21 F.3d 612, 622 (5th Cir.1994), and similarly, where
a federal district court has made its own factual findings, we
may only review those findings for clear error. Nealy, 764 F.2d
at 1176 (citing FED.R.CIV.P. 52(a)). A state court's findings
may be overturned where they are not fairly supported by the
record, 28 U.S.C. § 2254(d)(8); Maggio v. Fulford, 462 U.S. 111,
117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983), and a district
court's findings are clearly erroneous when, after considering
all the evidence, we are "left with the definite and firm
conviction that a mistake has been committed." Williams v.
Collins, 16 F.3d 626, 630 (5th Cir.1994), petition for cert.
filed, (U.S. June, 28, 1994) (No. 94-5004).

5
Nealy v. Cabana, 764 F.2d 1173, 1176-77 (5th Cir.1985).

We review Bryant's claim of ineffective assistance of counsel

under the standards announced by the Supreme Court in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

"First, a defendant must demonstrate that "counsel's representation

fell below an objective standard of reasonableness,' with

reasonableness being judged under professional norms prevailing at

the time counsel rendered assistance." Black, 962 F.2d at 401

(quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2064). Second,

if counsel was ineffective, "[t]he 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. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct.

at 2068. A claim of ineffective assistance of counsel will only

merit habeas relief when a petitioner satisfies both prongs of the

Strickland test. See id. at 687-97, 104 S.Ct. at 2064-69. The

district court concluded that Moore effectively represented Bryant

and, therefore, did not reach the question of prejudice.

In reviewing Bryant's ineffective assistance claim we must

"judge[ ] the conduct of the defense according to the objective

standard of the reasonable attorney," Kyles v. Whitley, 5 F.3d 806,

819 (5th Cir.1993), cert. granted, --- U.S. ----, 114 S.Ct. 1610,

128 L.Ed.2d 338 (1994), and "give great deference to counsel's

assistance, strongly presuming that counsel has exercised

reasonable professional judgment." Ricalday v. Procunier, 736 F.2d

6
203, 206 (5th Cir.1984). Accordingly, an attorney's strategic

choices, usually based on information supplied by the defendant and

gathered from a thorough investigation of the relevant law and

facts, "are virtually unchallengeable." Strickland, 466 U.S. at

691, 104 S.Ct. at 2066. We also observe that the reasonableness of

an attorney's investigation may critically depend on the

information forwarded by the defendant and the defendant's own

strategic decisions about his representation. See id. (stating

that "when a defendant has given counsel reason to believe that

pursuing certain investigations would be fruitless or even harmful,

counsel's failure to pursue those investigations may not later be

challenged as unreasonable"). However, an attorney must engage in

a reasonable amount of pretrial investigation and "at a minimum,

... interview potential witnesses and ... make an independent

investigation of the facts and circumstances in the case." Nealy,

764 F.2d at 1177. The failure to interview eyewitnesses to a crime

may strongly support a claim of ineffective assistance of counsel,

see Gray v. Lucas, 677 F.2d 1086, 1093 n. 5 (5th Cir.1982) (noting

that attorney's failure to investigate crucial witness may

constitute inadequate performance), cert. denied, 461 U.S. 910, 103

S.Ct. 1886, 76 L.Ed.2d 815 (1983), and when alibi witnesses are

involved, it is unreasonable for counsel not to try to contact the

witnesses and "ascertain whether their testimony would aid the

defense." Grooms v. Solem, 923 F.2d 88, 90 (8th Cir.1991), cert.

denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815.

A

7
 Bryant argues that Moore was ineffective for failing to

investigate and interview potential alibi witnesses. Bryant

contends that in his first meeting with Moore, around January 12,

1983, he specifically told Moore the names of alibi witnesses in

California, and provided Moore with the business card of a

California public defender, Paul Trudell, who had information

relevant to Bryant's alibi defense. In contrast, Moore testified

at the evidentiary hearing that Bryant refused to divulge the names

or addresses of any potential alibi witnesses before the pretrial

hearing on March 18, 1983, and that he first learned of Trudell and

potential alibi witnesses at that time. The district court found

Moore's version of the facts to be credible and stated that "Bryant

was not forthcoming with any information to aid Moore in preparing

an alibi defense until the [March 18 pretrial hearing]." We do not

disturb the district court's credibility decision. See Levrie v.

Department of Army, 810 F.2d 1311, 1314-15 (5th Cir.1987)

(concluding it is not clear error for district court to adopt one

of two equally possible views of evidence). Therefore, we agree

with the district court's conclusion that Moore's failure to

investigate Bryant's alibi defense prior to the pretrial hearing

did not amount to ineffective assistance.

The trial court also found that Bryant "did not submit to

trial counsel the names, addresses, or phone numbers of any alibi

witnesses prior to trial[,] ... [and Moore] interviewed all

witnesses made known to him prior to trial." Ex parte Bryant, No.

14,886, Second Supplementary Petition for Habeas Corpus at 13-14.

8
The state argues that these findings are presumptively correct,

should not be disturbed, and adequately support the district

court's conclusion that:

[Bryant] withheld information that might have allowed his
experienced court appointed attorneys to provide the best
possible representation. [Bryant] essentially hog-tied his
attorneys with his stonewalling and promises that his friends
were working on his alibi witnesses. Bryant should not now be
permitted to profit from his own planned course of conduct by
blaming his attorneys for the consequences of his actions.

Record on Appeal, vol. 1, at 328-29. We find that the trial

court's finding is not supported by the record, and therefore we

disagree with the district court's conclusion that Moore's failure

to investigate alibi witnesses following the pretrial hearing was

reasonable professional conduct.

When Moore first met Bryant in January of 1983, Bryant wanted

Moore to subpoena twenty-five "material" witnesses for his defense.

At subsequent meetings, Moore continually asked Bryant for the

names and addresses of Bryant's alibi witnesses, but Bryant failed

to disclose such information, indicating that friends of his in

California were "getting that [information] together." Therefore,

while Moore did not acquire the names or addresses of Bryant's

alibi witnesses at their meetings, he was cognizant of Bryant's

interest in pursuing an alibi defense.4 Then, at the pretrial

hearing, Moore learned from Bryant's testimony that Stanley Woods,

4
Bryant gave Moore a note at their first meeting which
stated: "The alleged date of the offense suspect can prove his
whereabouts. 15-people must be subpoena from state of California
[plus] 10-people now in New York, New Jersey and Florida. All
witnesses is material. Suspects [sic: suspect] wants all 25-
people to be at the Jury Trial." Record on Appeal, vol. 1, at
316.

9
and Harold and Teresa Wilson were potential alibi witnesses.5 Also

during the pretrial hearing, Moore had the opportunity to review

the notes of Sergeant Metzger of the Oakland Police Department, who

5
The magistrate judge and district court considered several
evidentiary exhibits, including: (1) investigation notes from
Sergeant Metzger of the Oakland Police Department, dated October
14, 1982; (2) investigation notes from the Alameda County Public
Defender's Office, from before November 24, 1982; and (3) an
affidavit from codefendant Marsaw, dated June 29, 1988. Bryant
also obtained affidavits from potential alibi witnesses—Linda
Thompson and Irene Clayton—and submitted them to the district
court after the magistrate judge's recommendation for habeas
relief. Maria Nava, an investigator for the Federal Public
Defender's Office, testified at the federal evidentiary hearing
that she spoke with Teresa Wilson about Bryant's whereabouts in
California on the date of the robbery.

Stanley Woods, Bryant's employer in California, told an
investigator of the Alameda County Public Defender's Office
on July 29, 1982, that Bryant was working for him at the
time of the armed robbery. On July 15, 1982, Harold Wilson
told the Alameda County Public Defender's Office that Bryant
came to his home in California on the date of the robbery,
where Wilson paid Bryant $100 towards the purchase price of
a car engine. Maria Nava testified that she interviewed
Teresa Wilson shortly before April 8, 1992, and Mrs. Wilson
stated that Bryant sold her husband a car engine on "May
12th or May 14th [or] ... around those days."

As the district court noted, "unlike most claims of
uncalled witnesses, the record in this proceeding is
saturated with the unexpected testimony of Petitioner's
"alibi' witnesses." Charles Marsaw, an eyewitness and
codefendant in this case, stated in his affidavit of June
29, 1988, that Bryant was not the other perpetrator of the
armed robbery. Linda Thompson provided an affidavit, dated
June 1, 1991, that Bryant sold Mr. and Mrs. Wilson a car
engine at her house in Oakland, California, on the date of
the robbery. Irene Clayton, a resident of Oakland, signed
an affidavit dated May 28, 1991, relating that Bryant called
her on the date of the robbery to let her know that he would
come by the following day to take her shopping. She further
stated that Bryant did take her shopping on the day after
the robbery. Margaret Pickett Sheppard told investigators
from the Alameda County Public Defender's Office on July 29,
1982, that she saw Bryant in California on the day preceding
the robbery.

10
had interviewed Stanley Woods concerning Bryant's whereabouts in

California.6 Sergeant Metzger's notes contained Woods' name,

address, and telephone number and indicate that Bryant "worked for

[Woods] during the month of May—beg[inning the] 13-14" and

continuing through the end of the month. Record on Appeal, vol. 1,

at 115-18. Although Moore testified that Bryant never let him

review the notes introduced at the pretrial hearing, the record

shows that these items were delivered to Moore in open court.7

6
Shortly after the robbery in Texas, Bryant became a suspect
in a homicide in California. Sergeant Metzger interviewed
Stanley Woods about Bryant's potential involvement in the
homicide. Bryant was never charged with homicide in California.
7
Certain papers and personal belongings were delivered to
Bryant at the pretrial hearing. These items were taken from
Bryant when he was placed in custody in Palo Pinto County, Texas.
The record reflects that the investigation notes of Sergeant
Metzger were contained in the materials delivered to Bryant and
Moore in open court. The record reads:

MR. MOORE: Your Honor, we would like to request
the Defendant be allowed to keep this particular group
of papers that he's been looking over here between now
and the time this trial is determined.

THE COURT: Do you find the papers you were
testifying about?

THE DEFENDANT: I found one of them which is
important to me.

THE COURT: What was that?

THE DEFENDANT: One of the affidavits—Well, it's
not really an affidavit, it's for [sic: from] the
homicide detective in California [that] interrogated my
employer.

* * * * * *

THE COURT: All right. Then this envelope there
sitting in front of the Defendant that he's been

11
Thus, between Bryant's testimony and the police investigation

notes, Moore had enough information, on March 18, 1983, to try to

contact Mr. Woods and the Wilsons about Bryant's alibi defense.

Under § 2254(d)(8), we are not bound by a trial court's

subsidiary findings when they are not fairly supported by the

record. The trial court's findings—that Moore did not know the

names, addresses, or phone numbers of alibi witnesses before trial,

nor had the opportunity to interview such witnesses—is not fairly

supported by the record, because Moore learned of Stanley Woods and

Mr. and Mrs. Wilson at the pretrial hearing on Friday, March 18,

1983, almost seventy-two hours before trial. Thus, the record

shows that Moore had information on potential alibi witnesses

before trial, and had the opportunity to try to interview such

witnesses.

Bryant testified at the pretrial hearing that he wanted to

subpoena out-of-state witnesses because he understood the trial

court to have determined "that affidavits wouldn't be any good here

in this court, so [subpoenaing witnesses is] my only defense."

State Record, vol. 2, at 26. During a recess in the pretrial

hearing, Moore discussed the procedure for subpoenaing out-of-state

witnesses with Judge Fitts.8 Despite Bryant's clear reliance on an

looking through and all of the contents thereof, let
the record show that they have been delivered to Mr.
Moore, one of the Defendant's attorneys.

State Record, vol. 2, at 23.
8
See TEX.CODE CRIM.PROC.ANN. art. 24.28 § 4 (Vernon 1989)
(allowing Texas courts to subpoena material witnesses from
another state).

12
alibi defense, Moore admitted that he did not try to contact

potential alibi witnesses in California. Moore abdicated his

responsibility of investigating potential alibi witnesses and

failed to "attempt to investigate and to argue on the record for

the admission of the alibi witnesses' testimony." Grooms v. Solem,

923 F.2d 88, 91 (8th Cir.1991). Moore's failure to investigate

potential alibi witnesses was not a "strategic choice" that

precludes claims of ineffective assistance. See Nealy, 764 F.2d at

1178 (according deference to counsel's strategic decisions). Moore

stated that he "would have loved to have had the [alibi] evidence"

and that "it would have been a different type of trial if we had

some alibi witnesses." Record on Appeal, vol. 2, at 190, 206.

Even if Moore had first learned of the alibi witnesses on the first

day of trial, he "nevertheless should have contacted the witnesses

and made his record to the trial court as to the significance of

the alibi and the fact that it was newly discovered." Grooms, 923

F.2d at 91. Since Moore was aware of Bryant's interest in pursuing

an alibi defense, and was given enough information to contact Woods

in California, it was incumbent upon Moore to at least try to

contact Woods in California. The record also reveals that Bryant

was a friend of Harold Wilson for about two years before the

robbery, and most probably knew the first names of "Mr. and Mrs.

Wilson." Record on Appeal, vol. 1, at 102-03. Moore should have

asked Bryant for the first names of Mr. and Mrs. Wilson, so that he

could have tried to contact them in California. Additionally,

Bryant is serving a sentence of life imprisonment for his

13
participation in the robbery, and given the seriousness of the

offense and the gravity of the punishment, counsel should have

tried to investigate the potential alibi witnesses. Cf. Loyd v.

Whitley, 977 F.2d 149, 157 (5th Cir.1992) (stating that "defense

counsel's failure to pursue a crucial line of investigation in a

capital murder case was not professionally reasonable"), cert.

denied, --- U.S. ----, 113 S.Ct. 2343, 124 L.Ed.2d 253 (1993).

Thus, we disagree with the district court's conclusion that

Moore was "hog-tied" or "stonewalled" from making any investigation

of alibi witnesses. Moore knew of three alibi witnesses before

trial and should have made some effort to contact or interview

these people in furtherance of Bryant's defense.9 Moore's complete

9
The district court relied on Kramer v. Butler, 845 F.2d
1291 (5th Cir.), cert. denied, 488 U.S. 865, 109 S.Ct. 168, 102
L.Ed.2d 138 (1988), to conclude that Bryant's failure to disclose
the names of alibi witnesses before the pretrial hearing
precludes a claim of ineffective assistance of counsel. In
Kramer, the habeas petitioner alleged that counsel's failure to
pursue "all possible leads in connection with a potential
insanity defense—in particular, by not ensuring that [petitioner]
was tested for temporal lobe epilepsy, a possible cause of
"blackouts' or "temporary psychoses'—[demonstrated that his]
attorneys failed to provide him with effective assistance." Id.
at 1293. Kramer held that the conduct of the petitioner's
attorneys was objectively reasonable. The district court
concluded that Kramer is analogous to this case because both
situations involve a habeas petitioner who did not disclose
"necessary information" about a defense, sufficiently in advance
of trial. Thus, the district court reasoned that "[h]ad Bryant
been forthcoming earlier with any of the alleged exculpatory
information he believes central to his defense, then Moore
probably would have been compelled to go beyond his review of the
District Attorney's file and a thorough reading of the indictment
returned in Bryant's case. Under such circumstances Moore would
have had an indication as to how to prepare the type of defense
his client envisioned." The district court's reliance on Kramer
is misplaced, because Kramer involved exculpatory evidence never
discussed before trial, whereas Bryant named exculpatory
witnesses at the pretrial hearing. Moore was on notice that

14
failure to investigate alibi witnesses fell below the standard of

a reasonably competent attorney practicing under prevailing

professional norms.10

B

Furthermore we find that Moore's failure to interview

eyewitnesses to the crime was constitutionally deficient

representation. There were two eyewitnesses to the armed robbery

of North American Phillips Federal Credit Union. One was Cindy

Carpenter, the branch manager of the credit union, who identified

Bryant as the individual who shot her in the commission of the

robbery. The other was Ronnie Berkins, who walked into the credit

union as Bryant was making his getaway. Moore did not interview

either Carpenter or Berkins and restricted his pretrial

investigation to discussions with Bryant, review of the indictment

against Bryant, and examination of the prosecutor's file.

Moore should have interviewed the eyewitnesses. Because there

was no physical evidence connecting Bryant with the crime, the

Bryant wanted to pursue an alibi defense and should have
investigated alibi witnesses as soon as he learned of their
identities.
10
The state suggests that the relationship between Bryant
and Moore was strained, with Bryant distrusting Moore and
refusing to disclose information about alibi witnesses. See
Strickland, 466 U.S. at 691, 104 S.Ct. at 2066 (noting that
information supplied by client critically affects what
investigation decisions are reasonable). However, a client's
uncooperativeness does not diminish counsel's duty to investigate
crucial witnesses, once the identity of those witnesses is made
known to counsel. See Bell v. Georgia, 554 F.2d 1360, 1361 (5th
Cir.1977) (concluding that attorney's performance was
unreasonable where he knew of alibi witnesses and did not contact
them because accused agreed to contact witnesses himself).

15
eyewitness identification of Bryant at the crime scene was the

cornerstone of the state's case in chief. Consequently,

information relevant to Bryant's defense might have been obtained

through better pretrial investigation of the eyewitnesses, and a

reasonable lawyer would have made some effort to investigate the

eyewitnesses' testimony. See Kemp v. Leggett, 635 F.2d 453, 454

(5th Cir.1981) (granting habeas relief where counsel failed to

interview single eyewitness or character witnesses); Gaines v.

Hopper, 575 F.2d 1147, 1149 (5th Cir.1978) (affirming habeas relief

where, inter alia, counsel failed to interview eyewitnesses).

The state argues that Moore was not obligated to interview

Carpenter or Berkins because their testimony was "vigorously

attacked" on cross examination. This argument is unpersuasive.

The fact that Moore's cross examination was effective does not

necessarily indicate that a reasonable lawyer, viewing the trial ex

ante, would have regarded an interview of the eyewitnesses as

unnecessary. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065

(requiring courts to "reconstruct the circumstances of counsel's

conduct from counsel's perspective at the time [of trial]," without

the "distorting effects of hindsight"). Moreover, assuming that

Moore's cross examination was effective, that is not to say it

could not have been improved by prior investigation. Given the

importance of eyewitness identification to Bryant's case, Moore did

not perform as a reasonable attorney practicing under prevailing

professional norms.

C

16
 Finally, Moore's failure to interview codefendant Marsaw is

inconsistent with reasonable professional conduct. Marsaw is a

codefendant and eyewitness who confessed to the robbery and

maintains that Bryant is not the other perpetrator of the crime.11

Moore admits that, despite a request from Bryant, he made no

attempt to locate or interview Marsaw. The state argues that

Moore's failure to interview Marsaw was a "strategic decision well

within the domain of competent trial counsel." Because Marsaw knew

Bryant in California, had prior convictions, and had pled guilty to

the robbery, the State argues that Marsaw's testimony would not

have been credible or persuasive to the jury. Cf. United States v.

Vergara, 714 F.2d 21, 23 (5th Cir.1983) (noting that it is not

uncommon for person who has been convicted of crime to take full

responsibility and exculpate codefendant). We disagree. Although

factors tending to diminish Marsaw's credibility might support a

strategic decision not to call Marsaw at trial, those

considerations do not suggest that Moore's total failure to

investigate Marsaw's testimony was a strategic decision. Without

speaking to Marsaw, Moore was ill equipped to assess his

11
Marsaw's affidavit states that:

The other participant [in the robbery] was a male. The
other participant in the robbery was not Roy Lee
Bryant, A. Sabr Muhammad. At the time of this robbery
he was in California. I know this personally because
of a phone call I had personally placed to California,
prior to this robbery here in the state of Texas. I
have told several law enforcement officers that Roy Lee
Bryant did not commit this robbery with me....

Record on Appeal, vol. 1, at 325.

17
credibility or persuasiveness as a witness, despite the objective

factors tending to impugn Marsaw's credibility.12 Accordingly,

Moore's performance was inadequate and does not pass the

performance prong of the Strickland test. See Henderson v.

Sargent, 926 F.2d 706, 711 (8th Cir.1991) (stating that "[c]ounsel

has "a duty ... to investigate all witnesses who allegedly

possessed knowledge concerning [the defendant's] guilt or

innocence.' ") (quoting Lawrence v. Armontrout, 900 F.2d 127, 130

(8th Cir.1990), modified on other grounds, 939 F.2d 586 (8th Cir.),

cert. denied, --- U.S. ----, 112 S.Ct. 915, 116 L.Ed.2d 815

(1992)).

In summary, we hold that counsel's failure to investigate

alibi witnesses and interview eyewitnesses is unprofessional

conduct falling below the standard of a reasonably competent

attorney practicing under prevailing professional norms. Moore's

representation, therefore, fails the performance prong of the

Strickland test,13 and we remand for a determination of whether

12
Moore admitted that all he knew about Marsaw's prior
convictions was relayed to him by Bryant. Moore made no
independent investigation of Marsaw's criminal record, the
circumstances surrounding his convictions, or his location.
13
We do not hold that the performance prong of Strickland
always requires interview of every claimed eyewitness, alibi
witness, and/or assertedly exculpating criminal co-participant.
These matters ultimately depend on the overall context of the
case. In this connection, we recognize that counsel does not
have unlimited time and that counsel's judgment in the effective
use of time is generally entitled to deference. Moreover, for
example, the need to interview an eyewitness may in part depend
on, among other things, the theory of defense; similarly,
results of interviewing certain witnesses or other investigation
may indicate that further pursuit of additional asserted
witnesses will likely be a waste of time. Here, however, defense

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counsel's defective performance prejudiced Bryant's case.14

III

For the forgoing reasons we REVERSE and REMAND to the district

court for a determination of whether Moore's omissions satisfy the

prejudice requirement of Strickland v. Washington, 466 U.S. at 694,

104 S.Ct. at 2068.

counsel, despite knowing of Bryant's at least colorable alibi,
did essentially no pre-trial investigation.
14
Bryant also argues that the district court heard newly
discovered evidence that established his alibi defense and
supported his claim of "actual innocence." Bryant argues that
the district court erred in holding that his actual innocence
claim provided no basis for relief. In Herrera v. Collins, 954
F.2d 1029 (5th Cir.1992), we considered whether two newly
discovered affidavits supported petitioner's claim of actual
innocence in a capital murder case. We held that it "is well
established that claims of newly discovered evidence, casting
doubt on the petitioner's guilt, are not cognizable in federal
habeas corpus." Id. at 1034. The Supreme Court has affirmed our
decision, stating that "[c]laims of actual innocence based on
newly discovered evidence have never been held to state a ground
for federal habeas relief...." Herrera v. Collins, --- U.S. ----
, ----, 113 S.Ct. 853, 860, 122 L.Ed.2d. 203 (1993). Thus,
Bryant's claim is without merit.

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