UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

MITCHELL, DENNIS L.


99-3035a

D.C. Cir. 2000


*	*	*


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months, and we affirmed in an unpublished order.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


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 




__________

n 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 




__________

n 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.


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


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-




__________

n 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


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


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 




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n 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.