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


UNITED STATES

v.

WEAVER, WINSTON


99-3063b

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: Winston Delano Weaver appeals  the denial of his
motion under 28 U.S.C. s 2255 to vacate his  conviction because of
ineffective assistance of counsel in fail- ing to obtain information
about the three suicide attempts of  a government witness.1 He
contends that the district court  erred in denying his motion without
an evidentiary hearing to  determine the significance of the attempts
and why they had  not been ascertained or disclosed prior to trial.
Assuming  that trial counsel's performance was deficient, we hold
that,  given the relative unimportance of the witness to Weaver's 
conviction, the degree to which the witness was impeached,  and the
strength of the government's other evidence, Weaver  has failed to
show the requisite prejudice. Accordingly, we  affirm.


I.


The government introduced evidence at Weaver's trial to  show that on
four separate occasions he supplied quantities of  cocaine to an
undercover officer of the Metropolitan Police  Department. That
evidence showed that Weaver supplied  the drugs in response to
arrangements made by Antonio  "Hub" Johnson, who was a government
informant working  with Officer Dale Sutherland.


The first sale occurred on November 14, 1991. Sutherland  had told
Johnson to contact Weaver. Johnson did so and  informed Weaver that
Sutherland wanted to buy three ounces  of powder cocaine for $3000.
That evening, the three men  met. While Sutherland waited in his
truck, Johnson accom- panied Weaver into a restaurant (near the
intersection of 18th  Street and Columbia Road, N.W.) where Weaver




__________

n 1 The district court certified this issue for appeal by Order of 
November 10, 1999. See Antiterrorism and Effective Death Penal- ty Act
of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified at 28  U.S.C. s
2253(c)(1)(B) (1996)).


bag containing powder cocaine. Weaver and Johnson re- turned to
Sutherland's truck, Johnson showed the cocaine to  Sutherland, and the
three men then left the area. The  second sale occurred on November
21, 1991. Johnson again  asked Weaver to sell Sutherland powder
cocaine, this time  four-and-a-half ounces for $3500. The three men
met that  afternoon (at the corner of Benning Road and H and Florida 
Streets, N.E.) and Johnson accompanied Weaver to a pay  phone nearby,
where Weaver telephoned the cocaine supplier.  The supplier stated
that he would be ready to make the  exchange in an hour, so the three
men reconvened then at the  corner of 18th Street and Columbia Road,
N.W., where the  first exchange had taken place. Weaver retrieved the
drugs  from the same place as he had before and gave the drugs to 
Johnson, who delivered them to Sutherland. Weaver and  Sutherland
agreed to continue to do business together. The  third sale occurred
on December 18, 1991, when Weaver  retrieved, again from the same
area, two ounces of powder  cocaine for Johnson to deliver to


Weaver was arrested on December 30, 1991 in connection  with a planned
fourth undercover sale, which was to take  place in a shopping center
parking lot. On this date, Suther- land negotiated with Weaver, again
through Johnson, for the  purchase of eighteen ounces of powder
cocaine; the telephon- ic negotiations were recorded.2 A video camera
recorded 




__________

n 2 In the first telephone call, Johnson asked Weaver if he could  get
half a kilo and an additional two-and-a-half ounces of cocaine; 
Weaver said he would try. At Sutherland's direction, Johnson told 
Weaver that he had given Sutherland some of his own money for  the
cocaine and, hence, wanted to remain involved in transactions  between
Weaver and Sutherland. In a second telephone call,  Weaver suggested
that the three men meet at his house, but  Johnson refused, expressing
concern over robberies of drug buyers.  In a third telephone call,
Sutherland spoke directly to Weaver, who  assured Sutherland that he
would find a safe place to make the  exchange; Weaver said he would
talk to his supplier about making  the exchange at a local hotel. In
the fourth telephone conversation,  the three men agreed to meet in a
shopping center parking lot at  the intersection of Alabama and
Pennsylvania Avenues, S.E. Al-


parts of the transaction, and several undercover police offi- cers were
positioned in the parking lot for the surveillance  operation.


Before going to the shopping center, Johnson drove Weav- er to a
parking lot (near 46th Street and Fletcher Johnson  High School in
Southeast) where Weaver saw his supplier,  Gregory Barnes, in a car
with George Denny. Weaver left  Johnson's car and spoke to Barnes. At
the same time, Denny  got out of Barnes' car and into the back seat of
Johnson's car.  Johnson then drove Weaver and Denny to the Fairfax
Village  parking lot, with Barnes following in his car. On the way, 
Denny showed Johnson some of the cocaine. After the men  arrived in
the shopping center parking lot, Sutherland and  Weaver argued about
whether Sutherland would pay first or  Weaver would produce the drugs
first. As soon as Suther- land agreed to produce the money before
receiving the drugs,  he opened the hatch of his jeep to get the
money, and the  arrest teams, by prearranged signal, moved in to make
the  arrests. When Weaver appeared to be getting away, Suther- land
revealed that he was a police officer and placed Weaver  under


Weaver and Barnes were indicted on four counts in connec- tion with the
events of December 30, 1991.3 At their consoli-




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n though there were no negotiations as to the purchase price for the 
eighteen ounces of powder cocaine at the December 30th sale,  Officer
Sutherland testified that he "had assumed [the price] would  be about
$14,000."


3 Weaver and Barnes were indicted for conspiracy to distribute  more
than fifty grams of a mixture containing cocaine base, in  violation
of 21 U.S.C. ss 841(a)(1), 841(b)(1)(A)(iii), and 841(b)(1)(C);  two
counts of attempted distribution of a mixture containing cocaine  base
within 1000 feet of a school zone, in violation of 21 U.S.C.  ss 846,
860(a) and 18 U.S.C. s 2; and unlawful use of a communica- tion
facility to facilitate the attempted distribution of a mixture 
containing cocaine base, in violation of 21 U.S.C. ss 841(a)(1) and 
843(b). In addition, on May 28, 1992, Weaver was indicted on seven 
counts in connection with his drug distributions on November 14  and
21, and December 18, 1991. Weaver's appeals from his convic- tions
were consolidated by the court.


dated trial, the government called Johnson, Sutherland, and  Denny,
among others, as witnesses to testify against Weaver  and Barnes. As
relevant to this appeal, Denny testified that  he sold drugs for
Barnes, and that on December 30th, he  gave Weaver drugs that Barnes,
not Johnson, supplied him.  Weaver testified in his own defense,
claiming that although he  had used cocaine for at least twenty years,
he had never  before sold it, and that on the four dates in question,
he was  paying off a debt to Johnson, who had at one point sold drugs 
to Weaver on credit. Weaver had not wanted to sell drugs,  but Johnson
told him that Sutherland was "excited about the  purchase." Johnson
even coached Weaver on how to act like  a drug dealer. When Weaver
tried to back out of the  December 30th sale, Johnson struck him
across the face with  a pistol, chipping Weaver's tooth. Weaver
testified that he  had never before met Barnes and did not know who he
was.  Weaver also presented a witness who testified that Johnson  was
selling drugs during the time that he was working with  the police. On
April 21, 1992, a jury convicted Weaver on all  counts; a mistrial was


Two years after his conviction was affirmed on appeal, see  United
States v. Weaver, 55 F.3d 685 (D.C. Cir. 1995), Weav- er filed a pro
se motion under 28 U.S.C. s 2255 to vacate, set  aside, or correct his
sentence on the ground of ineffective  assistance of counsel. As
relevant here, Weaver alleged that  trial counsel had failed to obtain
information that was avail- able about Denny's three suicide attempts
in the D.C. Jail.4  Weaver argued in his motion that although Denny
was a  "scoundrel" and a "hyperfallacious perjuror," trial counsel 
failed to impeach him, despite the fact that Denny's suicide 




__________

n 4 In his pro se motion, Weaver also raised claims of prosecutori- al
misconduct and prosecutorial vindictiveness. In reply to the 
government's opposition, Weaver claimed that he was entitled to 
relief not only because trial counsel failed to obtain information 
about Denny's three suicide attempts, but also because trial counsel 
failed to seek production of evidence regarding Denny's ownership  of
a safe, to impeach Denny for visitation with his fiancee, and to 
contact a witness who would have testified that Johnson was selling 
drugs while working for the government.


attempts raised questions about his "competency as a wit- ness." Weaver
argued later, through counsel, that the sui- cide evidence was
"probative of the ends to which Mr. Denny  would go to get out of


The district court denied the motion without a hearing.  Relying on
United States v. Smith, 77 F.3d 511, 516 (D.C.  Cir. 1996), for the
proposition that "only a mental disorder  that would potentially
impair a witness' ability or willingness  to tell the truth is enough
to make a witness incompetent and,  consequently, a trial unfair," the
district court found that  neither Denny's suicide attempts nor any
prior mental history  indicated that he suffered from a mental illness
that would  prevent him from testifying truthfully. Furthermore, the 
court found that Denny had been "extensively cross- examined" and that
"his competency to serve as a witness  was satisfactory."


II.


On appeal, Weaver contends that "[i]n the context of multi- ple
allegations as to the ineffectiveness of [trial] counsel and 
prosecutorial misconduct and the apparent multiple suicide  attempts
by a key government witness George Denny, the  [district c]ourt [ ]
was obligated to conduct a hearing regard- ing the significance of the
attempts and why they had not  been ascertained and/or disclosed prior
to trial." Weaver  maintains that it is "logically impossible to
determine the  possible impact of a mental illness upon testimony
without  knowing what the illness might be," and that Denny's suicide 
attempts are "indicative of the desperation of a witness to  escape
punishment." Continuing, Weaver maintains that "[a]  distinction
should be made between the suicide attempts and  the underlying
psychiatric disorder they might indicate."  Finally, he notes that the
district court stated in its certifica- tion of appealability that he
had made "a substantial showing  that he was denied his constitutional
right to counsel by the  alleged ineffectiveness of counsel in failing
to obtain informa- tion regarding Mr. Denny's three suicide


Under Strickland, Weaver must demonstrate both that  trial counsel's
performance was deficient or unreasonable  under the circumstances,
and that the deficient performance  prejudiced the defendant such that
there was "a reasonable  probability that, but for counsel's
unprofessional errors, the  result of the proceeding would have been
different." Strick- land v. Washington, 466 U.S. 668, 694 (1984); see
also  Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). A rea- sonable
probability is "a probability sufficient to undermine  confidence in
the outcome." Strickland, 466 U.S. at 694. In  Strickland, the Court
labeled relevant findings regarding the  performance and prejudice
prongs as mixed questions of law  and fact, see id. at 698; however,
"that does not settle what  standard of appellate review is
appropriate." United States  v. Askew, 88 F.3d 1065, 1070 (D.C. Cir.
1996). Normally, the  court's review of the district court's findings
of fact is "highly  deferential," such that the district court's
findings will be  reversed only if they are "clearly erroneous,"
United States v.  Del Rosario, 902 F.2d 55, 58 (D.C. Cir. 1990)
(citing Strick- land, 466 U.S. at 698 and Fed. R. Civ. P. 52(a)); see
also  Pierce v. Underwood, 487 U.S. 552, 558 (1988), while review of 
the district court's legal conclusions is de novo. See id.;  United
States v. Ahn, 231 F.3d 26, slip op. at 18 (D.C. Cir.  Nov. 14, 2000)
(citing United States v. Pollard, 959 F.2d 1011,  1023 (D.C. Cir.
1992)). We need not decide which standard is  appropriate because even
on de novo review we find no error.  See Askew, 88 F.3d at 1071.


Section 2255 provides that hearings shall be granted "[u]n- less the
motion and the files and records of the case conclu- sively show that
the prisoner is entitled to no relief." 28  U.S.C. s 2255. When a s
2255 motion involves ineffective  assistance of counsel, a hearing is
not required if the district  court determines that the "alleged
deficiencies of counsel did  not prejudice the defendant." United
States v. Sayan, 968  F.2d 55, 66 (D.C. Cir. 1992) (citing United
States v. Patterson,  652 F.2d 1046, 1047-48 (D.C. Cir. 1981)).


The ultimate question is whether, despite the fact that the  evidence
presenting Denny's suicide attempts was not pre- sented to the jury,
Weaver received a fair trial, that is "a trial 


resulting in a verdict worthy of confidence." Kyles v. Whit- ley, 514
U.S. 419, 434 (1995). Our disposition of Weaver's  contention that a
hearing was required might be different if,  as Weaver asserts on
appeal, Denny had been a "key govern- ment witness" against him. Then,
because the nature and  significance of Denny's suicide attempts is
not a matter of  record, a hearing might have been in order. Further,
be- cause it is also unclear in the record when information about  the
suicide attempts became available to the government and  defense
counsel, the matter might need to have been explored  at a hearing.
These issues might need to have been explored  if Denny had been a key
witness against Weaver because  cross-examination regarding the extent
of Denny's willingness  to exculpate Johnson might have demonstrated
Denny's lack  of credibility to a greater extent than the defense
attacks on  his credibility that the jury, in fact, heard. If Denny
had  been a key witness inculpating Weaver, and the government's 
evidence was otherwise weak, the jury's evaluation of Weav- er's
coercion defense could have been affected.


In contending that the district court abused its discretion in 
summarily denying his motion, Weaver, however, faces a  series of
hurdles. As to the performance prong of Strick- land, the government
notes, the district court found, and this  court has recognized,
attempted suicide by itself does not  render a witness' testimony less
credible. See United States  v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir.
1992). Weaver has  not proffered any evidence suggesting that Denny
was incom- petent, much less that Denny could have been impeached by 
information relating to his suicide attempts.5 Under the 




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n 5 At oral argument, the government advised that during a later 
trial, Denny asserted a privilege with respect to the disclosure of 
evidence of his suicide attempts; the district court upheld the 
privilege. Apparently, the defense did not challenge the assertion  of
the privilege. In Smith, the court noted both that "evidence 
regarding mental illness is relevant only when it may reasonably  cast
doubt on the ability or willingness of a witness to tell the  truth,"
and that "[f]ederal courts often permit cross-examination  regarding a
witness' previous mental history, and may even allow  extrinsic
evidence such as hospital records to be used for impeach-


circumstances, having failed to proffer a basis to show that  counsel's
performance was deficient, the district court was not  required to
hold an evidentiary hearing. See Machibroda v.  United States, 368
U.S. 487, 495 (1962); United States v.  Green, 680 F.2d 183, 184, 189
(D.C. Cir. 1982). But assuming  Weaver has met the performance prong
of Strickland, by  showing that information about Denny's suicide
attempts was  available for trial counsel to discover and could have
been  used to impeach Denny's testimony by showing that he was  so
desperate not to testify against Johnson that he would do  and say
anything to stay out of jail, Weaver must still  demonstrate a
"reasonable probability" that the outcome of  his trial would have
been different.6 Strickland, 466 U.S. at  694.


At the outset, Weaver's attempt to show prejudice as a  result of the
cumulative effect of alleged errors by trial  counsel and the district
court is an attempt to circumvent the  provisions of the Antiterrorism
and Effective Death Penalty  Act,7 and this he knows he cannot do. See
United States v.  Winston Delano Weaver, 195 F.3d 52, 53 (D.C. Cir.
1995).  Because Weaver did not appeal the district court's certifica-
tion, only his allegation regarding trial counsel's failure to 




__________

n ment purposes," provided there is a sufficient temporal nexus. 77 
F.3d at 516.


6 The district court found that the government disclosed Den- ny's
suicide attempts on May 12, 1992 (after the jury returned its  verdict
in Weaver's trial). Weaver points to no evidence that would  have
alerted defense counsel to Denny's suicide attempts before  then.


7 The Antiterrorism and Effective Death Penalty Act requires a 
defendant to obtain a certificate of appealability from the district 
court in order to pursue an appeal, see 28 U.S.C. s 2253(c)(1)(B), 
and provides that "[t]he certificate of appealability ... shall
indicate  which specific issue or issues satisfy the showing required
by  paragraph (2)." Id. s 2253(c)(3) (emphasis added). Paragraph (2) 
provides that a certificate of appealability may be issued only if the
 defendant makes a "substantial showing of the denial of a constitu-
tional right." Id. s 2253(c)(2).


learn of Denny's suicide attempts is properly before the  court. See
id.


Additionally, characterizing Denny as a "key government  witness"
against Weaver both misstates the nature of Denny's  role at Weaver's
trial and ignores the key eyewitness testimo- ny against Weaver by
informant Johnson and undercover  officer Sutherland, as well as the
December 30th video and  telephonic recordings.8 Denny's testimony
was, at most,  cumulative with respect to Weaver. Moreover, Weaver's 
attempt to distinguish United States v. Moore, 104 F.3d 377  (D.C.
Cir. 1997), is unpersuasive. In Moore, the court reject- ed the
defendant's claim of ineffective assistance of trial  counsel because
"[e]ven had [trial counsel] located the[ ]  [missing] witnesses, the
testimony they allegedly would have  provided was tangential at best,"
and in light of the strong  evidence against the defendant, any error
by counsel would  have been harmless. Id. at 391. Similarly here, the
strength  of the government's evidence against Weaver would remain 
virtually unchanged had Denny never testified.


To the extent that Denny's suicide attempts could have  further
impeached his testimony, the district court could  properly conclude
that the extensive cross-examination of  Denny provided the jury with
strong grounds to doubt his  credibility. Not only was Denny
cross-examined about his  own past drug-selling activities, his
possession of weapons, his  assaultive conduct against his girlfriend,
and his false state- ments about his prior criminal conduct to
authorities, includ- ing the trial judge and his probation officer,
but the jury also  learned about his agreement to cooperate with the
govern- ment. In closing argument, trial counsel continued to attack 
the credibility of the government's witnesses, arguing that  both
Johnson's and Denny's necks were on the line and that  they were
trying to "work[ ] a beef off for the police, and 




__________

n 8 Even if, as Weaver's counsel argued in closing argument at  trial,
the tape recordings were not entirely clear, transcriptions  were made
available to the jury. In any event, the recordings  provided some
corroboration of the eyewitness' testimony against  Weaver. See supra
n.2.


would say anything to Mr. Weaver and do anything to get  Mr. Weaver
involved in this transaction."


Because Denny played an insubstantial role with regard to  the evidence
against Weaver, the district court properly ruled  that Weaver had
failed to meet his burden of showing preju- dice under Strickland, and
that the verdict was "worthy of  confidence."9 Kyles, 514 U.S. at 434.
Accordingly, because  Weaver fails to show that the district court
abused its discre- tion in denying his s 2255 motion without an
evidentiary  hearing, we affirm the order denying the motion.




__________

n 9 Weaver's contention that the district court may have failed to 
apply the correct prejudice standard is patently meritless. In its 
memorandum opinion, the district court set forth Strickland's two-
pronged test and concluded, upon reviewing Weaver's allegations,  that
"[trial c]ounsel's performance was not deficient and did not 
prejudice [Weaver's] presentation to the jury." See, e.g., Walton v. 
Arizona, 497 U.S. 639, 653 (1990).