United States of America v.  James H. Roane, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 03-13 
JAMES H. ROANE, JR.,
Defendant-Appellee. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-25 
JAMES H. ROANE, JR.,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-26 
CORY JOHNSON,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-27 
RICHARD TIPTON,
Defendant-Appellant. 

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Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-92-68; CA-98-360-3; CA-98-895-3; CA-98-361-3)
Argued: May 6, 2004
Decided: August 9, 2004
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed in part and reversed in part by published opinion. Judge
King wrote the opinion, in which Judge Wilkinson and Judge Duncan
joined.
COUNSEL
Nos. 03-13 & 03-25. ARGUED: Robert John Erickson, Criminal
Division, Appellate Section, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant/Cross-Appellee. Paul
Francis Enzinna, BAKER BOTTS, Washington, D.C., for
Appellee/Cross-Appellant. ON BRIEF: Paul J. McNulty, United
States Attorney, Alexandria, Virginia; G. Wingate Grant, Assistant
United States Attorney, Richmond, Virginia, for Appellant/Cross
Appellee. Michael J. Barta, Jamie Kilberg, Cheryl Crumpton,
BAKER BOTTS, Washington, D.C., for Appellee/Cross-Appellant.
No. 03-26. ARGUED: Barbara Lynn Hartung, Richmond, Virginia,
for Appellant. Robert John Erickson, Criminal Division, Appellate
Section, UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellee. ON BRIEF: Edward E. Scher, THORSEN
& SCHER, L.L.P., Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Alexandria, Virginia; G. Wingate
Grant, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
2 UNITED STATES v. ROANE

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No. 03-27. ARGUED: Stephen Atherton Northup, TROUTMAN
SANDERS, L.L.P., Richmond, Virginia, for Appellant. Robert John
Erickson, Criminal Division, Appellate Section, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Frederick R. Gerson, ROBINSON & GERSON, P.C., Rich-
mond, Virginia, for Appellant. Paul J. McNulty, United States Attor-
ney, Alexandria, Virginia; G. Wingate Grant, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
OPINION
KING, Circuit Judge:
In February 1993, James Roane, Cory Johnson, and Richard Tipton
were convicted in the Eastern District of Virginia for an array of crim-
inal activity, including several capital murders, arising out of drug-
trafficking operations in and near Richmond. Each received at least
one death sentence for his crimes, plus various terms of imprison-
ment. After unavailing direct appeals to this Court, United States v.
Tipton, 90 F.3d 861 (4th Cir. 1996), Roane, Johnson, and Tipton (the
"Defendants") sought habeas corpus relief in the district court. The
Government sought summary judgment on their claims, which the
district court awarded, except for two claims raised by Roane. See
United States v. Tipton, No. 3:92CR68 (E.D. Va. May 1, 2003) (the
"Opinion"). After discovery proceedings and an evidentiary hearing
on Roane’s remaining two claims, the court granted relief on his Sixth
Amendment claim of ineffective assistance of counsel ("IAC claim"),
vacating Roane’s convictions and sentences relating to the murder of
Douglas Moody. See United States v. Roane, No. 3:92CR68 (E.D. Va.
May 1, 2003) (the "Roane Opinion"). Finally, the court rejected
Roane’s claim of actual innocence of the Moody murder. Id.
We are now presented with four separate appeals, which we have
consolidated. In Appeal No. 03-13, the Government appeals the dis-
trict court’s award of relief to Roane on his Sixth Amendment IAC
claim. In No. 03-25, Roane cross-appeals the court’s rulings in favor
of the Government on certain of his other claims. And in Nos. 03-26
and 03-27, Johnson and Tipton appeal the award of summary judg-
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ment to the Government on certain of their claims. As explained
below, we affirm the rulings in favor of the Government in Nos. 03-
25, 03-26, and 03-27, and we reverse the award of relief to Roane in
No. 03-13.
I.
A.
In our comprehensive 1996 opinion rejecting the Defendants’
direct appeals, Judge Phillips aptly summarized the relevant facts
underlying the prosecution of Johnson, Tipton, and Roane. See Tip-
ton, 90 F.3d at 868-70. Because we are unable to improve on that
summary, it is set forth in haec verba:
Recounted in summary form and in the light most favor-
able to the Government, the core evidence revealed the fol-
lowing. Tipton, Roane, and Cory Johnson were principal
"partners" in a substantial drug-trafficking conspiracy that
lasted from 1989 through July of 1992. The conspiracy’s
operations began in Trenton, New Jersey where Johnson and
Tipton, both from New York City, became members. In
August of 1990, the conspiracy expanded its operations to
Richmond, Virginia where Roane joined the conspiracy in
November of 1991. The Trenton-based operation came to an
end on June 4, 1991 when police confiscated a large quan-
tity of crack cocaine and firearms. In late 1991, the conspir-
acy’s operations were expanded from the Central Gardens
area of Richmond to a second area in Richmond called
Newtowne.
During the period of the conspiracy’s operation, its "part-
ners", including appellants, obtained wholesale quantities of
powdered cocaine from suppliers in New York City, con-
verted it by "cooking" [it] into crack cocaine, then packaged
it, divided it among themselves, and distributed it through
a network of 30-40 street level dealers, "workers." Typi-
cally, the appellants and their other partners in the conspira-
cy’s operations took two-thirds of the proceeds realized
from street-level sales of their product.
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Over a short span of time in early 1992, Tipton, Cory
Johnson, and Roane were variously implicated in the mur-
ders of ten persons within the Richmond area — all in rela-
tion to their drug-trafficking operation and either because
their victims were suspected of treachery or other misfea-
sance, or because they were competitors in the drug trade,
or because they had personally offended one of the "part-
ners."
On January 4, 1992, Tipton and Roane drove Douglas
Talley, an underling in disfavor for mishandling a drug
transaction, to the south side of Richmond. Once there,
Roane grabbed Talley from the rear while Tipton stabbed
him repeatedly. The attack lasted three to five minutes and
involved the infliction of eighty-four stab wounds to Tal-
ley’s head, neck, and upper body that killed him.
On the evening of January 13, 1992, Tipton and Roane
went to the apartment of Douglas Moody, a suspected rival
in their drug-trafficking area, where Tipton shot Moody
twice in the back. After Moody fled by jumping through a
window, both Tipton and Roane pursued. Roane, armed
with a military-style knife retrieved from an apartment
where the knife was kept for co-conspirator Curtis Thorne,
caught up with Moody in the front yard of the apartment
where he stabbed him eighteen times, killing him.
On the night of January 14, 1992, Roane, Cory Johnson,
and a third person retrieved a bag of guns that they had left
at an apartment earlier that day. Roane then located Peyton
Johnson, another rival drug dealer, at a tavern. Shortly after
Roane left the tavern, Cory Johnson entered with another
person and fatally shot Peyton Johnson with a semi-
automatic weapon.
On January 29, 1992, Roane pulled his car around the
corner of an alley, got out of the vehicle, approached Louis
Johnson, whom appellant Johnson thought had threatened
him while acting as bodyguard for a rival dealer, and shot
him. Cory Johnson and co-conspirator Lance Thomas then
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got out of Roane’s car and began firing at Louis Johnson.
As Louis Johnson lay on the ground, either Cory Johnson or
Thomas shot him twice at close range. Louis Johnson died
from some or all of these gunshot wounds.
On the evening of February 1, 1992, Cory Johnson and
Lance Thomas were told that Roane had gone to the apart-
ment of Torrick Brown, with whom Roane had been having
trouble. Johnson and Thomas armed themselves with semi-
automatic weapons and went to the apartment where they
joined appellant Roane outside. The three then knocked on
Brown’s door and asked his half-sister, Martha McCoy, if
Brown was there. She summoned Brown to the door and
Cory Johnson, Roane, and Thomas opened fire with semi-
automatic weapons, killing Brown and critically wounding
McCoy.
In late January, 1992, after being threatened by Cory
Johnson for not paying for a supply of crack cocaine, Doro-
thy Armstrong went to live with her brother, Bobby Long.
On February 1, Cory Johnson learned from Jerry Gaiters the
location of Long’s house. Thereafter, Tipton and an uniden-
tified "young fellow" picked up Gaiters and Cory Johnson
who were then driven by Tipton to a house where the group
obtained a bag of guns. After dropping off the unidentified
third party, the group proceeded to Long’s house. Upon
arriving at Long’s house, Cory Johnson and Gaiters got out
of the car and approached the house. While Tipton waited
in the car, Cory Johnson and Gaiters went to the front door.
When Long opened the door, Cory Johnson opened fire,
killing both Dorothy Armstrong and one Anthony Carter.
Bobby Long fled out the front door, but was fatally shot by
Cory Johnson in the front yard.
In early February 1992, Cory Johnson began to suspect
that Linwood Chiles was cooperating with the police. On
February 19, 1992, Johnson borrowed Valerie Butler’s auto-
mobile and arranged to meet with Chiles. That night, Chiles,
Curtis Thorne, and sisters Priscilla and Gwen Greene met
Cory Johnson and drove off together in Chiles’s station
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wagon. Chiles parked the car in an alley, and Tipton soon
drove in behind it in another car, got out, and came up
alongside the stationwagon. With Tipton standing by, Cory
Johnson told Chiles to place his head on the steering wheel
and then shot Chiles twice at close range. Additional shots
were fired, killing Thorne and critically wounding both of
the Greene sisters. The autopsy report indicated that Thorne
had been hit by bullets fired from two different directions.
Tipton was charged under 21 U.S.C. § 848(e) and 18
U.S.C. § 2 with capital murder for eight of these killings
(Talley, Moody, Louis Johnson, Long, Carter, Armstrong,
Thorne, and Chiles); Cory Johnson, with seven (Louis John-
son, Long, Carter, Armstrong, Thorne, Chiles, and Peyton
Johnson); and Roane, with three, (Moody, Louis Johnson,
and Peyton Johnson).
The jury convicted Tipton of six of the eight capital mur-
ders with which he was charged under § 848(e) (Talley,
Armstrong, Long, Carter, Chiles, and Thorne). One of the
other two § 848(e) charges was dismissed (Louis Johnson)
and the other resulted in acquittal (Moody). Tipton was also
convicted of conspiracy to possess cocaine base with the
intent to distribute (21 U.S.C. § 846), engaging in a [contin-
uing criminal enterprise ("CCE")] (21 U.S.C. § 848(a)),
eight counts of committing acts of violence (the eight kill-
ings charged under § 848(e)) in the aid of racketeering activ-
ity (18 U.S.C. § 1959), two counts of using a firearm in
relation to a crime of violence or a drug-trafficking crime
(18 U.S.C. § 924(c)), and two counts of possessing cocaine
base with intent to distribute (21 U.S.C. § 841(a)(1)).
The jury convicted Cory Johnson of all seven of the capi-
tal murders with which he was charged under § 848(e)
(Louis Johnson, Long, Carter, Armstrong, Thorne, Chiles,
and Peyton Johnson). He was also convicted of conspiracy
to possess cocaine base with the intent to distribute (21
U.S.C. § 846), engaging in a CCE (21 U.S.C. § 848(a)),
eleven counts of committing acts of violence (including the
seven killings charged under § 848(e)) in aid of racketeering
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activity (18 U.S.C. § 1959), five counts of using a firearm
in relation to a crime of violence or drug-trafficking offense
(18 U.S.C. § 924(c)), and two counts of possession of
cocaine base with the intent to distribute (21 U.S.C.
§ 841(a)(1)).
The jury convicted Roane of all three of the capital mur-
ders with which he was charged under § 848(e) (Moody,
Peyton Johnson, and Louis Johnson.) He was also convicted
of conspiracy to possess cocaine base with the intent to dis-
tribute (21 U.S.C. § 846), engaging in a CCE (21 U.S.C.
§ 848(a)), five counts of committing acts of violence
(including the three killings charged under § 848(e)) in aid
of racketeering activity (18 U.S.C. § 1959), four counts of
using a firearm in relation to a crime of violence or a drug-
trafficking offense (18 U.S.C. § 924(c)), and one count of
possession of cocaine base with the intent to distribute (21
U.S.C. § 841(a)(1)).
Following a penalty hearing on the capital murder counts,
the jury recommended that Cory Johnson be sentenced to
death on all of the seven § 848(e) murders of which he had
been convicted; that Tipton be sentenced to death for three
of the six § 848(e) murders of which he was convicted (Tal-
ley, Chiles, and Thorne); and that Roane be sentenced to
death for one of the three of which he was convicted
(Moody). The district court sentenced Johnson, Tipton, and
Roane to death in accordance with the jury’s recommenda-
tions pursuant to 21 U.S.C. § 848(l), and imposed various
sentences of imprisonment upon each of the appellants for
the several noncapital counts on which they were convicted
and for those capital murder counts on which Tipton and
Roane had been convicted but were not given death sen-
tences.
On appellants’ motion, the district court refused to order
execution of the several death sentences on the grounds that
Congress had neither directly authorized the means by
which the death sentences imposed under § 848 should be
carried out, nor properly delegated to the Attorney General
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the authority to issue the implementing regulations that were
invoked by the Government. In consequence, the district
court stayed execution of the death sentences it had imposed
until such time as Congress had authorized the means of
execution.
Id.
When the Defendants initially appealed their convictions and sen-
tences to this Court, the Government cross-appealed the district
court’s stay of their death sentences. In our Tipton opinion, we ana-
lyzed and disposed of approximately sixty issues, including chal-
lenges by the Defendants to aspects of the jury-selection process, the
trial’s guilt phase, and the trial’s penalty phase. See id. at 870-901. In
rejecting nearly all these challenges, we affirmed the convictions and
sentences of the Defendants, except for their convictions for violating
21 U.S.C. § 846 (conspiracy to commit drug offenses), which we
vacated on double jeopardy grounds. Finally, on the Government’s
cross-appeal, we vacated the stay of their death sentences and
remanded for the executions to proceed in accordance with regula-
tions promulgated by the Attorney General. Id. at 901-03.
B.
Following our decision in Tipton, the Defendants persisted in seek-
ing relief from their convictions and sentences. On May 8, 1998, they
sought leave to interview jurors, pursuant to Local Rule 83.5 of the
district court, which was denied. Johnson v. Pruett, No. 3:97CV895
(E.D. Va. June 10, 1998). On June 1, 1998, the Defendants sought
relief under 28 U.S.C. § 2255, filing motions to vacate, set aside, or
correct their sentences.1 The Government sought summary judgment
on these motions, and the Defendants, in June 1999, requested leave
to conduct discovery. The court granted the discovery request in part,
authorizing Tipton to conduct certain forensic testing. Johnson v. Pru-
ett, No. 3:97CV895 (E.D. Va. May 3, 2000).
1Pursuant to § 2255 of Title 28, a federal prisoner claiming his "sen-
tence was imposed in violation of the Constitution or laws of the United
States . . . may move the court which imposed the sentence to vacate, set
aside or correct the sentence."
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In its Opinion disposing of the § 2255 motions, the district court
awarded summary judgment to the Government except on Roane’s
claims that: (1) he was denied effective assistance of counsel in con-
nection with the Moody murder, and (2) he was actually innocent of
that murder. See Opinion at 114. The Defendants thereafter filed a
joint motion to alter the Opinion, which the court denied. United
States v. Tipton, No. 3:92CR68 (E.D. Va. July 15, 2003). Johnson and
Tipton then moved for the issuance of certificates of appealability,
which the district court awarded on November 26, 2003, as to all
claims raised in their § 2255 motions. United States v. Tipton, No.
3:92CR68 (E.D. Va. Nov. 26, 2003). Johnson and Tipton have filed
timely appeals, and we possess jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253(a).
C.
On June 21, 2002, the district court conducted an evidentiary hear-
ing on Roane’s IAC claim and on his claim of actual innocence. In
the Roane Opinion of May 1, 2003, the court made findings of fact
regarding the representation rendered by Roane’s trial attorney. See
Roane Opinion at 2-8. In so doing, the court first addressed the evi-
dence implicating Roane in the Moody murder, finding as follows:
• Denise Berkley testified that on the night of the Moody
murder, she watched Roane stab Moody "18 or 19 times"
while Moody pleaded for his life; that she then saw San-
dra Reavis, Roane, Curt Thorne, Linwood Chiles, and
Priscilla "Pepsi" Greene leave the scene of the murder in
Chiles’s station wagon; and that Roane took the knife he
used to stab Moody and gave it to Pepsi Greene, asking
her to get rid of it;
• Pepsi Greene testified that she heard two or three shots
and then saw Roane and Tipton exit the house from
which the shots were fired; that Roane then directed her
to get him a knife; and that later that night, Roane
returned the knife, then covered with blood, and told her
to get rid of it; and
• Robert Davis testified that, immediately following the
Moody murder, he saw Tipton and Roane by the steps
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near his house and heard them stating, "Yeah, I got him,
I got him . . . we can’t stay out here, man. This is hot
anyway."
Id. at 3-4. Importantly, the court found the testimony of these wit-
nesses to be "credible and . . . corroborated by the physical evidence
of murder including the autopsy and the crime scene video." Id. at 4.
Indeed, the court found Greene’s testimony to be "particularly com-
pelling." Id.
The court then focused on the evidence of Gina Taylor, who
observed the Moody murder. Taylor had testified at trial that Roane
was not involved. Id. The court found, however, that the value of Tay-
lor’s evidence was undermined by (1) her acknowledgment that she
could not identify the assailant’s gender and that she did not see his
face, (2) the fact that she was evasive on cross-examination, and (3)
her acknowledgment that she had "kind of" dated Tipton. Id.
The court then made findings regarding Roane’s alibi for the
Moody murder. According to the court, Roane had advised his lawyer
prior to trial of the following: (1) he did not participate in the murder
of Moody; (2) on January 12, 1992 — the night of the murder — he
was in a Howard Johnson hotel room with codefendant Sandra
Reavis; (3) he and Reavis were driven to the hotel by Linwood
Chiles; (4) Carmella Cooley accompanied them to the hotel; and (5)
Chiles had registered and paid cash for the hotel room. Id. at 5. The
court found that the lawyer, David Baugh, "was convinced that Roane
did not participate in the Moody murder" and that the hotel was a
"couple of miles from where Douglas Moody was murdered." Id.
In addressing Mr. Baugh’s pretrial investigation into Roane’s alibi,
the court found the following: (1) Mr. Baugh interviewed Cooley,
who said that she had once accompanied Roane and Reavis to the
Howard Johnson but could not verify the date; (2) Mr. Baugh con-
cluded that Cooley’s ignorance of the date and apparent hostility
would make her a bad witness; (3) Mr. Baugh contacted the hotel
seeking records of Linwood Chiles renting a room on January 12,
1992; (4) when the hotel manager advised that there were no such
records, Mr. Baugh went to the hotel and personally sought to locate
such records; (5) Mr. Baugh limited his search to the name "Linwood
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Chiles," and searched only for records of January 12, 1992; and (6)
Mr. Baugh found no records of Linwood Chiles being registered at
the hotel on January 12, 1992. Id.
The court analyzed the sufficiency of Mr. Baugh’s pretrial investi-
gation and concluded that it was constitutionally deficient. In so rul-
ing, it found that: (1) an investigator hired by Roane’s habeas corpus
lawyer went to the Howard Johnson and looked through boxes of
occupancy records for three hours; (2) the investigator found a card
with the name "Chiles, Linwood" from the night of January 2, 1992,
and a card with the name "Chiles, Larry" from the night of January
12, 1992; (3) in his trial preparation, Mr. Baugh could have subpoe-
naed the Howard Johnson records, or he could have devoted more
effort to searching for them; (4) if Mr. Baugh had utilized the sub-
poena process or searched more diligently, he could have located the
records found by the investigator; and (5) Roane was amenable to tes-
tifying in his own defense but was advised by Mr. Baugh not to testify
unless his alibi defense could be objectively corroborated. Id. at 5-6.
Finally, the court made several findings on the evidence presented
in the habeas corpus evidentiary hearing, to the following effect: (1)
Roane’s testimony was "tenable but not compelling"; (2) although
Reavis confirmed Roane’s alibi, her testimony was "flat and unper-
suasive"; (3) because she would not waive her Fifth Amendment
rights, Reavis would not have testified at trial; (4) Demetrius Rowe
testified that, at about 8:30 p.m. on the night of the Moody murder,
Reavis told Rowe that she was going to a hotel with Roane; (5) Rowe
saw Reavis and Roane leave the area — not in Chiles’s station wagon
(as Roane claimed) but in a cab; (6) Rowe witnessed the murder of
Moody and was sure Roane was not present; (7) Rowe did not pro-
vide anyone with this information before trial; and (8) to the extent
it exculpated Roane, Rowe’s evidence was "not credible" and "would
carry no weight with a jury." Id. at 7.
Assessing all these findings in the context of the case, the court
concluded that Mr. Baugh was constitutionally ineffective in his
investigation of Roane’s alibi. It therefore vacated Roane’s convic-
tions and sentences on the three counts related to the Moody murder,
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that is, Counts Five, Six, and Seven.2 Id. at 13. Finally, the court
denied relief on Roane’s claim of actual innocence.3 Id.
The Government appealed the court’s ruling in favor of Roane on
his IAC claim, and Roane sought a certificate of appealability on cer-
tain of the claims resolved against him, which the district court
issued. United States v. Tipton, No. 3:92CR68 (E.D. Va. Nov. 26,
2003). Roane then cross-appealed, and we possess jurisdiction pursu-
ant to 28 U.S.C. §§ 1291 and 2253(a).
II.
In our consideration of the district court’s rulings, we review its
legal conclusions de novo and its findings of fact for clear error. Mon-
roe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003); see also Quesin-
berry v. Taylor, 162 F.3d 273, 276 (4th Cir. 1998). We review de
novo mixed questions of law and fact addressed by the district court
— including the issue of whether a lawyer’s performance was consti-
tutionally adequate. Smith v. Angelone, 111 F.3d 1126, 1131 (4th Cir.
1997). We review for abuse of discretion the district court’s decision
to deny a post-trial request to interview jurors, United States v.
Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988), as well as its rulings
on a discovery request. See Thomas v. Taylor, 170 F.3d 466, 474 (4th
Cir. 1999).
III.
The Defendants raise multiple issues on appeal, and the district
judge has awarded a certificate of appealability on each of them.4
2On Count Five, Roane was convicted of killing Moody while engaged
in or working in furtherance of a CCE, in violation of 21 U.S.C.
§ 848(e)(1)(A). On Count Six, Roane was convicted of using a firearm
in relation to the killing of Moody, in violation of 18 U.S.C. § 924(c).
And on Count Seven, Roane was convicted of killing Moody in order to
maintain or increase his position in a racketeering enterprise, in violation
of 18 U.S.C. § 1959.
3Roane does not appeal the court’s rejection of his claim of actual
innocence.
4In Part III of this opinion, we spell out and address those issues raised
by the Defendants in Nos. 03-25, 03-26, and 03-27. In Part IV, we
address the Government’s appeal (No. 03-13) from the award of relief to
Roane on his IAC claim.
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Under the applicable statute, an appeal may not be taken from a final
order of a district court in a § 2255 proceeding unless a certificate of
appealability has been issued. 28 U.S.C. § 2253(c)(1)(B). A certificate
of appealability may only be issued "if the applicant has made a sub-
stantial showing of the denial of a constitutional right," id.
§ 2253(c)(2), and the judge must specify the issues on which the cer-
tificate has been granted, id. § 2253(c)(3). In this instance, the district
judge issued certificates of appealability to the Defendants and
explained, "[u]pon consideration of the Defendants’ claims and the
arguments offered in support thereof, the Court concludes that the
issues for which the Defendants seek a certificate of appealability are
adequate to deserve encouragement to proceed further." United States
v. Tipton, No. 3:92CR68 (E.D. Va. Nov. 26, 2003).
Although some of the issues raised on appeal are common to the
Defendants, certain issues pertain to only two of the Defendants or
solely to a particular defendant.5 Each of their contentions, however,
falls into one of six categories:
(1) claims that the prosecution unconstitutionally discrimi-
nated against women in the jury selection process;
(2) challenges to their § 848 CCE convictions — including
claims that the trial court erred in failing to instruct and
counsel were ineffective in failing to request an instruction
that (a) the jury had to unanimously agree on which predi-
cate violations constituted a "continuing series"; (b) the jury
had to unanimously agree on the identities of the "five or
more persons" that each Defendant supervised; and (c) cer-
tain categories of persons and certain types of relationships
cannot constitute supervision;
(3) claims of prosecutorial misconduct during trial —
including claims that (a) the prosecution knowingly intro-
duced perjured testimony from witnesses Gregg Scott, Mau-
rice Saunders, and Hussone Jones; and (b) the prosecution
5When all three Defendants have raised the same issue on appeal, we
refer to "the Defendants." Otherwise, we identify by name the defendant
raising a particular issue.
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improperly withheld exculpatory evidence regarding wit-
nesses "Wildman" Stevens, John Knight, and Stoodie Green;
(4) challenges to the court’s conduct of the habeas corpus
proceedings — including (a) challenges to the standard
employed by the court in assessing the Defendants’ discov-
ery requests; (b) the contention that the court abused its dis-
cretion in granting summary judgment without allowing
further discovery; and (c) Johnson and Tipton’s claim that
the court erroneously denied their motion for leave to inter-
view jurors;
(5) IAC claims not otherwise addressed — including (a)
that their lawyers should have further investigated their
alleged gang activities in New York and New Jersey; (b)
Johnson and Tipton’s claim that their lawyers should have
requested a voir dire inquiry on whether prospective jurors
had a tendency to favor the death penalty; (c) Johnson and
Tipton’s claim that their lawyers failed to present mitigating
evidence regarding prison conditions; (d) Tipton’s claims
that his lawyers failed to present adequate defenses to the
Talley and Stoney Run murders;6 (e) Tipton’s claim that his
lawyers failed to present an adequate case-in-mitigation; (f)
Roane’s claim that his lawyers conceded certain aggravating
factors; and (g) Roane’s claim that his lawyers waived his
right to attend the voir dire proceedings; and
(6) Johnson’s Eighth Amendment claim that he is men-
tally retarded and cannot constitutionally be executed, and
that his counsel were ineffective in failing to address this
issue at sentencing and on direct appeal.7
6In the Talley murder, Tipton and Roane had driven Douglas Talley to
Richmond’s southside in January 1992, where Tipton stabbed Talley
eighty-four times in the head, neck, and upper body. In the Stoney Run
murders, Cory Johnson and Tipton, in February 1992, shot into Linwood
Chiles’s stationwagon, killing Chiles and Curtis Thorne, and seriously
wounding the Greene sisters, Priscilla ("Pepsi") and Gwen.
7The Defendants raise four other claims that were already addressed
and rejected on direct appeal. Those claims are: (1) Defendants’ conten-
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We assess these various issues in turn.8
A.
At trial, the Government utilized two of its peremptory challenges
to strike men from the jury panel, and it used eight peremptory chal-
lenges to strike prospective women jurors. The Defendants, however,
failed to object at trial to the Government’s use of its peremptory
challenges. After trial, but before Defendants’ direct appeal, the
tion that they were denied their rights to "justice without discrimination,"
in violation of 21 U.S.C. § 848(o) and the Fifth and Eighth Amendments,
see Tipton, 90 F.3d at 891 n.16; (2) Johnson and Tipton’s contention that
§ 848(h) constitutes an unconstitutional delegation of legislative author-
ity to prosecutors by allowing them to allege non-statutory aggravating
factors, see id. at 895; (3) Johnson and Tipton’s claim that the evidence
at trial was insufficient to show that they supervised five or more per-
sons, as required by § 848, see id. at 890; and (4) Johnson and Tipton’s
claim of misconduct by juror Cooke due to mid-trial publicity, id. at 891
n.16. Because the Defendants have not pointed to any change in the law
that warrants our reconsideration of these claims, we agree with the dis-
trict court that they cannot relitigate these issues. See Opinion at 2-3; see
Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976)
(explaining that defendant cannot relitigate issues previously rejected on
direct appeal).
8The Defendants also maintain that, pursuant to Ring v. Arizona, 536
U.S. 584 (2002), their death sentences are constitutionally invalid under
the Fifth Amendment because the Indictment failed to allege the statu-
tory aggravating factors under 21 U.S.C. § 848(n)(1)-(12) that define eli-
gibility for the death penalty. See Ring, 536 U.S. at 589 (explaining that
a capital defendant is entitled, under the Sixth Amendment, to a jury
determination of any fact that increases the maximum penalty from life
imprisonment to death); United States v. Higgs, 353 F.3d 281, 297 (4th
Cir. 2003) (explaining that Ring dictates that any factor required to be
submitted to the jury must be included in the indictment pursuant to the
Fifth Amendment Indictment Clause). After oral argument in this case,
the Court held that "Ring announced a new procedural rule that does not
apply retroactively to cases already final on direct review." Schriro v.
Summerlin, 124 S. Ct. 2519, 2526 (June 24, 2004). And although Schriro
involved the Sixth Amendment aspect of Ring, its reasoning — that Ring
is procedural and does not classify as a rule worthy of retroactive effect
— applies equally here.
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Supreme Court held that intentional gender discrimination by use of
peremptory challenges contravenes the Equal Protection Clause.
J.E.B. v. Alabama, 511 U.S. 127 (1994) (extending its holding in Bat-
son v. Kentucky, 476 U.S. 79 (1986) from racial discrimination to
gender discrimination). The Defendants, in their direct appeal, raised
the issue of sex discrimination in jury selection. In rejecting their
claim, we explained that they had produced no evidence to support
their claim, other than "raw figures" of men versus women stricken
by the prosecution, and such raw figures were insufficient to make a
prima facie showing of gender discrimination. Tipton, 90 F.3d at 881
& n.11. Because we addressed this issue on direct appeal in Tipton,
the Defendants cannot raise their J.E.B. claim again in these § 2255
proceedings.9
The Defendants also maintain that the failure of their counsel to
object to the prosecution’s use of its peremptory challenges consti-
tutes ineffective assistance of counsel. At the time of their trial, how-
ever, the Supreme Court had not granted certiorari in J.E.B., and the
Ninth Circuit was the only federal appellate court to extend the Bat-
son principle to gender discrimination. See United States v. De Gross,
960 F.2d 1433, 1437-43 (9th Cir. 1992) (en banc). Indeed, we had
explicitly rejected attempts to extend Batson to gender. See United
States v. Hamilton, 850 F.2d 1038, 1042 (4th Cir. 1988) ("[W]e reject
appellants’ suggestion that the Equal Protection Clause compels us to
extend Batson to apply to peremptory challenges exercised on the
basis of gender."). In light of this precedent, the Defendants are
unable to demonstrate that their counsel’s failure to object to the pros-
ecution’s use of peremptory strikes against prospective female jurors
fell below the range of professionally competent performance. See
United States v. McNamara, 74 F.3d 514, 517 (4th Cir. 1996)
(explaining counsel not deficient for following controlling circuit pre-
cedent at time of trial). Accordingly, we must affirm the court’s ruling
on the IAC claims premised on the lack of an objection at trial to the
prosecution’s use of its peremptory strikes.
9Because we have already considered Defendants’ J.E.B. claim on
direct appeal and therefore will not reconsider it, we do not reach the dis-
trict court’s conclusion that the claim was defaulted by Defendants’ fail-
ure to raise it at trial. See Opinion at 12.
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B.
We turn next to the Defendants’ multiple claims of error regarding
their convictions on the CCE counts. In order to convict a defendant
of a CCE offense, the Government is required to prove five elements:
(1) [the] defendant committed a felony violation of the
federal drug laws; (2) such violation was part of a continu-
ing series of violations of the drug laws; (3) the series of
violations were undertaken by defendant in concert with five
or more persons; (4) defendant served as an organizer or
supervisor, or in another management capacity with respect
to those other persons; and (5) defendant derived substantial
income or resources from the continuing series of violations.
United States v. Ricks, 882 F.2d 885, 890-91 (4th Cir. 1989); see also
21 U.S.C. § 848(c). On appeal here, and in their § 2255 proceedings
in district court, the Defendants focus on the second, third, and fourth
of these elements.
1.
In their direct appeals, the Defendants asserted that the trial court
had plainly erred in failing to instruct the jury that it was required to
unanimously agree on three predicate violations supporting the "con-
tinuing series" element of § 848(c).10 Assuming that unanimity was
required, we rejected this claim and explained that "the record plainly
indicates that appellants could have suffered no actual prejudice from
the lack of a special unanimity instruction on the predicate violation
element" because "[b]y its verdict, it is clear that the jury unani-
mously found each guilty of at least five predicate violations . . . ."
Tipton, 90 F.3d at 885.
After we rendered our Tipton decision, the Supreme Court con-
firmed what we had assumed there. It held that, in a CCE prosecution,
the jury must unanimously agree on the specific violations that make
10In Richardson v. United States, 526 U.S. 813, 818 (1999), the Court
assumed, without deciding, that the necessary number to make up a "con-
tinuing series" is three. The parties do not dispute this number here.
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up the "continuing series." Richardson v. United States, 526 U.S. 813,
816 (1999). The Defendants now contend that the trial court’s failure
to give the Richardson instruction constitutes a structural defect in
their trial and that they are therefore not required to show prejudice.
In the alternative, they assert that they have demonstrated prejudice.
Johnson and Tipton also maintain that their lawyers were ineffective
in failing to object to the lack of a unanimity instruction. As explained
below, we agree with the district court that these claims lack merit.
We have recognized that a trial court’s failure to give a Richardson
instruction is a procedural defect rather than a structural one. United
States v. Stitt, 250 F.3d 878, 883 (4th Cir. 2001) (rejecting assertion
that Richardson error is structural defect); United States v. Brown,
202 F.3d 691, 699 (4th Cir. 2000) (same). As explained in Stitt, a trial
court’s failure to give a Richardson instruction is subject to harmless
error analysis, and a defendant raising such an issue must therefore
demonstrate prejudice. Stitt, 250 F.3d at 883. We ruled on the Defen-
dants’ direct appeal that the trial court’s failure to give a Richardson-
type instruction did not prejudice them, see Tipton, 90 F.3d at 885,
and we must therefore affirm the district court on this point.
In addition to their substantive Richardson claims, Johnson and
Tipton maintain that their counsel’s failure to request a Richardson-
type instruction at trial constitutes ineffective assistance, in violation
of the Sixth Amendment. Again, our decision on direct appeal fore-
closes this contention. In order to prevail on an IAC claim, a defen-
dant must demonstrate that: (1) counsel’s performance was deficient;
and (2) such deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Because we decided in Tip-
ton that the Defendants were not prejudiced by the lack of a Richard-
son instruction, Johnson and Tipton are unable to satisfy the second
prong of Strickland. Accordingly, we affirm the court’s ruling on this
claim as well.
2.
Relying on United States v. Jerome, 942 F.2d 1328, 1330-31 (9th
Cir. 1991), Johnson and Tipton next contend that they were entitled
to a special unanimity instruction on the CCE charge regarding the
identities of the "five or more persons" that each of them was alleged
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to have supervised. See 21 U.S.C. § 848(c). Not only has this claim
been inexcusably defaulted by Johnson and Tipton’s failure to raise
it either at trial or on direct appeal, it also fails because, in Stitt, we
held that Richardson did not change the rule "that the jury need not
unanimously agree on which five persons were organized, supervised,
or managed by the defendant." Stitt, 250 F.3d at 886.
Johnson and Tipton nevertheless claim that their attorneys were
constitutionally ineffective in failing to raise this unanimity issue at
trial. Because Stitt stands for the proposition that unanimous agree-
ment on the identity of each supervisee is not required, we agree with
the district court that the lawyers were not ineffective in failing to
seek such an instruction. See Opinion at 21-25.
3.
Johnson and Tipton next contend that the trial court erred in failing
to instruct — and counsel were ineffective in failing to request — that
certain categories of persons (i.e., drug kingpins) cannot as a matter
of law be supervisees, and that certain types of relationships (i.e.,
buyer-seller) cannot constitute supervision. See United States v.
Barona, 56 F.3d 1087, 1096-97 (9th Cir. 1995) (finding error in fail-
ing to instruct that certain individuals who were on list of potential
supervisees given to jury were incapable, as a legal matter, of count-
ing as supervisees). This claim has been defaulted by the failure of
Johnson and Tipton to raise it either at trial or on direct appeal. See
Bousley v. United States, 523 U.S. 614, 622 (1998). Like the district
court, see Opinion at 19, 21-25, however, we will briefly examine this
claim in order to assess the contention that counsel’s failure to raise
it in a timely manner resulted from constitutionally ineffective repre-
sentation.
The trial court gave the following instruction regarding the supervi-
sion element of § 848(c):
[t]he term "organizer" and the term "supervisory position"
and "position of management" are to be given their usual
and ordinary meanings. These words imply the exercise of
power or authority by a person who occupies some position
of management or supervision.
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See Opinion at 19-20. We upheld this very instruction in United
States v. Hall, 93 F.3d 126, 130 (4th Cir. 1996), two months after our
decision in Tipton. In Hall, the defendant maintained that the jury
should have been instructed that he could have neither supervised nor
organized individuals with whom he had only a buyer-seller relation-
ship. Id. As we explained in Hall, "[j]urors are competent to under-
stand and apply ordinary concepts like organizer, supervisor and
management." Id. at 131. This jury, like the one in Hall, was fully
capable of understanding the term "supervision." Accordingly, John-
son and Tipton were not prejudiced by the lack of such an instruction,
and their counsel were not ineffective in failing to request a more
detailed instruction regarding these terms.11
C.
We turn next to the contentions of Johnson and Tipton that their
trial was prejudiced by multiple instances of prosecutorial miscon-
duct. They contend that the prosecution knowingly introduced false
testimony at trial, in contravention of their due process rights, from
witnesses Gregg Scott, Maurice Saunders, and Hussone Jones. And
Tipton asserts that the Government contravened the principles of
Brady v. Maryland, 373 U.S. 83 (1963), by withholding from them
exculpatory evidence pertaining to the witnesses "Wildman" Stevens,
John Knight, and Stoodie Greene. We assess these claims in turn.
1.
First, Johnson and Tipton contend that the prosecution knowingly
11Johnson and Tipton also maintain that the trial court erred in failing
to instruct, and that counsel were ineffective in failing to request an
instruction, that the Government must prove "management" in order to
satisfy the CCE statute’s "organizer" or "supervisor" element. This con-
tention ignores our precedent that proof that a CCE defendant exercised
some degree of control over others is not required to show that he acted
as an organizer. See Butler, 885 F.2d at 201. Even if proof of control
were required, the trial court properly instructed the jury that supervision
constitutes the "exercise of power and authority by a person who occu-
pies some position of management." Accordingly, this contention is
without merit.
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introduced perjured testimony from Gregg Scott, Maurice Saunders,
and Hussone Jones. In order to prevail on such a claim, Johnson and
Tipton are required to demonstrate that: (1) the testimony was false,
see Boyd v. French, 147 F.3d 319, 329-30 (4th Cir. 1998); (2) the
Government knew the testimony was false, see Thompson v. Garri-
son, 516 F.2d 986, 988 (4th Cir. 1975); and (3) there is a reasonable
probability that the false testimony could have affected the verdict,
Boyd, 147 F.3d at 330. As explained below, we agree with the district
court that this claim must be rejected.
a.
In support of this habeas corpus claim, Johnson and Tipton submit-
ted affidavits from various gang members in New York, asserting that
Gregg Scott had lied at trial when he: (1) testified that the New York
Boyz (a gang of which Johnson and Tipton were allegedly members)
met to discuss retaliating against individuals who threatened other
members of the gang; and (2) testified that he received guns from a
man known as "Light."12 Although Johnson and Tipton raised a fac-
tual issue on the falsity of these statements, they offered no proof that
the Government knew or should have known this testimony to be
false. Opinion at 33-35. And the fact that the evidence may have ben-
efitted the Government is not enough. Such "‘[a]iry generalities, con-
clusory assertions and hearsay statements [do] not suffice’ to stave off
summary judgment or entitle a habeas petitioner to an evidentiary
hearing, because none of these would be admissible evidence at an
evidentiary hearing." Id. at 35 (quoting United States v. Aiello, 814
F.2d 109, 113 (2d Cir. 1987)). We therefore affirm the district court’s
ruling on this claim.
12Johnson and Tipton also submitted affidavits that Greg Scott lied
when he: (1) said that he grew up at 155th and Amsterdam in New York;
and (2) described the New York Boyz as a gang. The district court found
that these statements simply constitute differences of opinion, rather than
statements of fact. See Opinion at 33. Johnson and Tipton do not contest
this finding on appeal.
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b.
Johnson and Tipton next assert that the Government knew, or that
it should have known, that Maurice Saunders testified falsely at trial
when he claimed that he saw Light during two trips to New York, and
that Light could not have been in New York because he was in fact
incarcerated elsewhere during Saunders’s visits. Again, Johnson and
Tipton proffer no evidence that the Government, at the time of trial,
knew or should have known of Light’s incarceration. See Horton v.
United States, 983 F. Supp. 650, 654-55 (E.D. Va. 1997) (rejecting
assertion that, for Brady purposes, federal prosecutor is charged with
knowledge of state prison records). And conclusory accusations that
the Government should have known that a statement was false, with-
out more, do not warrant an evidentiary hearing or offer escape from
summary judgment. See Aiello, 814 F.2d at 113-14.
In any event, Johnson and Tipton have made no showing that such
testimony about Light’s incarceration, even if untrue, could have
affected the outcome of their trial. As the district court explained in
denying their IAC claim regarding the prosecution’s failure to dis-
cover Light’s incarceration, the Government presented extensive trial
evidence of Johnson and Tipton’s New York connections and gang-
related activities. Opinion at 39 (explaining that the proffered testi-
mony of Light’s incarceration does not negate the following: "An-
thony Howlen’s testimony that Johnson and Tipton were part of the
New York Boyz and sliced him with razors when he interfered with
their attempts to sell drugs in New Jersey; the repeated references to
the New York Boyz during the course of the Richmond based activi-
ties; Tipton’s threats to invoke the assistance of his New York asso-
ciates if retaliatory actions were required; the appearance of New
York Boyz Lance Thomas and Hess in Richmond; and the repeated
trips by Tipton and Johnson from Richmond to New York to obtain
drugs"). We therefore affirm the district court on this claim.
c.
Johnson and Tipton also contend that the witness Hussone Jones
lied when he testified about the murder of Douglas Talley. Jones testi-
fied at trial that he watched from his own car as Tipton stabbed Talley
in Talley’s car. Johnson and Tipton assume that this testimony was
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false because there were no street lights in the area of the crime, and
they contend it was too dark for Jones to see anything. The district
court found, however, that Jones was within ten to twenty feet of Tal-
ley’s car, and that the car was illuminated by its dome light. The
dome light was lit because, after initially being stabbed, Talley’s arms
and head prevented the car door from closing. Opinion at 54-55.
Jones’s testimony was consistent with the facts observed at the crime
scene, and Johnson and Tipton have failed to make the requisite
showing of falsity.
2.
Tipton also asserts that the prosecution improperly withheld excul-
patory evidence from his counsel, in violation of due process and
Brady, regarding the witnesses "Wildman" Stevens, John Knight, and
Stoodie Green. In order to establish a Brady violation, Tipton was
required to demonstrate that the information at issue was "favorable
to the accused"; that it was "suppressed by the [Government], either
willfully or inadvertently"; and that prejudice to the defense ensued.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The district court
held that Tipton failed to establish a Brady violation, see Opinion at
57, 63-64, and we agree.
Tipton contends, first of all, that the prosecutors knew, and yet
failed to disclose, that the witness Stevens had denied receiving a
knife from Tipton, and that this information would have refuted
Jones’s testimony that Tipton gave Stevens a bloody knife on the
night of the Talley murder. As for this claim, the district court found
that there was no evidence that Stevens actually conveyed this infor-
mation to the prosecution. Id. at 57. Accordingly, this contention fails
under the second Brady prong.
Second, Tipton asserts that the prosecutors knew of, and yet also
failed to disclose, statements by the witnesses John Knight and Stoo-
die Green providing Tipton an alibi on the night of the Stoney Run
murders. Tipton’s Brady claims must fail, however, because, "where
the exculpatory information is not only available to the defendant but
also lies in a source where a reasonable defendant would have looked,
a defendant is not entitled to the benefit of the Brady doctrine."
United States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990). We have
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explained that information actually known by the defendant falls out-
side the ambit of the Brady rule. Fullwood v. Lee, 290 F.3d 663, 686
(4th Cir. 2002). Obviously, Tipton knew who he was with on the eve-
ning of the Talley murder — he had no need for the Government to
provide him with such information. Thus, no Brady violation has been
shown, and we affirm the district court’s ruling on the issue.
D.
We turn next to the Defendants’ multiple challenges to the district
court’s conduct of their habeas corpus proceedings. These contentions
include (1) their challenge to the standard utilized by the court in
assessing their discovery requests; (2) their contention that the court
abused its discretion in awarding summary judgment to the Govern-
ment without first according them an opportunity to conduct discov-
ery; and (3) their assertion that the denial of their motion for leave to
interview jurors was erroneous.
1.
Other than authorizing Tipton to conduct forensic testing of a knife
found at the Talley murder scene, the court denied the Defendants’
broad motions for authority to conduct discovery in their habeas cor-
pus proceedings. Johnson v. Pruett, No. 3:97CV895 (E.D. Va. May
3, 2000). Pursuant to Rule 6(a) of the Rules Governing § 2255 Pro-
ceedings, a prisoner may engage in discovery only "if, and to the
extent that, the judge in the exercise of his discretion and for good
cause shown grants him leave to do so, but not otherwise." The
Defendants contend that the district court utilized an incorrect legal
standard in assessing their discovery requests. And the Defendants
assert that, regardless of the standard employed, such discovery
should have been authorized. We are constrained to disagree.
In denying the request for discovery, the court explained the stan-
dard it was utilizing:
The Supreme Court determined in Harris v. Nelson, 394
U.S. 286 (1969), and its progeny, Bracy v. Gramley, 520
U.S. 899 (1997), that ‘good cause’ for discovery exists when
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a petition for habeas corpus establishes a prima facie case
for relief. See Harris v. Nelson, 394 U.S. at 290. Specifi-
cally, discovery is warranted, "where specific allegations
before the court show reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate
that he is . . . entitled to relief." Bracy, 520 U.S. at 908-09
(citing Harris, 394 U.S. at 299-300).
Johnson v. Pruett, No. 3:97CV895 (E.D. Va. May 3, 2000). The
Defendants assert that the court, in ruling against them, improperly
applied a stringent "prima facie" standard under Harris, instead of a
more forgiving "good cause" standard authorized by Bracy. This con-
tention is incorrect. In Bracy, the Court cited with approval the dis-
covery standard articulated in Harris, merely clarifying the definition
of "good cause." See Quesinberry v. Taylor, 162 F.3d 273, 279 (4th
Cir. 1998) (observing that Bracy approved the Harris standard); see
also Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir. 2000) ("[T]he
Bracy decision does not lower the grade for discovery in habeas
cases, but rather it merely reasserts the standards of Harris v. Nelson
. . . ."). Here, the district court properly applied the good cause stan-
dard outlined in Harris and Bracy, and it did not abuse its discretion
in deciding that the Defendants had not shown good cause for the
bulk of their discovery requests. The court carefully considered each
claim asserted by the Defendants, and it assessed whether the Defen-
dants had shown good cause for discovery. See Johnson v. Pruett, No.
3:97CV895, at 3-12 (E.D. Va. May 3, 2000). Because the court
applied the proper standard and did not abuse its discretion, we affirm
its rulings on this issue.13
2.
Johnson and Tipton next contend that the district court abused its
13The district court alternatively held that the Defendants were pre-
cluded from further discovery by their failure to comply with Federal
Rule of Civil Procedure 56(f), which requires a civil litigant opposing
summary judgment to attest in an affidavit that he cannot oppose sum-
mary judgment without conducting discovery. We need not reach this
basis for denial of discovery because the court did not abuse its discre-
tion in finding that the Defendants had failed to demonstrate good cause.
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discretion in denying their claims of juror misconduct without first
granting them leave to interview the jurors. According to Johnson and
Tipton, the jurors were exposed to extraneous information during
trial, including extensive media coverage, which clouded their judg-
ment.
We have already assessed and disposed of at least one aspect of
this claim. During trial, two jurors admitted reading an inflammatory
article about the Defendants. One of those jurors was excused by the
trial court, but the other, Mr. Cooke, advised the court that the article
would not affect his consideration of the case, and he continued to
serve. On direct appeal, the Defendants contended that Cooke should
have been removed from the jury because he had been exposed to
mid-trial adverse publicity. We specifically considered this claim and
found no error in the court’s decision with regard to Cooke. Tipton,
90 F.3d at 891 n.16. In addition, we agree with the district court that
Johnson and Tipton’s remaining media-related claims with respect to
the jury have been procedurally defaulted by their failure to raise
them either at trial or on direct appeal. See Opinion at 3.
As to their non-media-related juror misconduct claims, the district
court carefully explained that they are so speculative as to be "insuffi-
cient to survive summary dismissal, much less summary judgment."
United States v. Tipton, No. 3:92CR68, at 3 (E.D. Va. July 15, 2003).
Throughout the trial, the court gave cautionary instructions to the jury
concerning both media coverage and other possible outside influ-
ences, repeatedly reminding the jurors to avoid such external sources
of information. Johnson and Tipton have provided us with nothing to
suggest that the jurors violated these instructions. And as we observed
in Gravely, "[r]equests to impeach jury verdicts by post-trial contact
with jurors are disfavored." 840 F.2d at 1159. Before proceeding
down the path of impeaching a jury verdict, a § 2255 movant must
make a threshold showing of improper outside influence. Id. In this
instance, the court did not abuse its discretion in finding that no such
showing had been made. Id. (explaining that denial of jury investiga-
tion is subject to abuse of discretion review). Put simply, Johnson and
Tipton have failed to proffer any evidence that the jurors engaged in
misconduct or that they were improperly exposed to outside influ-
ences. We therefore affirm the court’s rulings on the Defendants’
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request to interview the jurors. See Opinion at 3; United States v. Tip-
ton, No. 3:92CR68, at 3 (E.D. Va. July 15, 2003).
E.
The Defendants also assert multiple other IAC claims, contending
that: (1) their lawyers should have further investigated their alleged
gang activities in New York and New Jersey; (2) Johnson’s and Tip-
ton’s lawyers should have requested a "reverse-Witherspoon" inquiry;14
(3) Johnson’s and Tipton’s lawyers failed to present mitigating evi-
dence regarding prison conditions; (4) Tipton’s lawyers failed to pre-
sent adequate defenses to the Talley and Stoney Run murders; (5)
Tipton’s lawyers failed to make an adequate case-in-mitigation; (6)
Roane’s lawyers conceded certain aggravating factors; and (7)
Roane’s lawyers waived his right to voir dire.
As we have explained, the Court in Strickland established that an
IAC claim has two prongs: (1) that counsel’s performance was defi-
cient; and (2) that such deficient performance prejudiced the defense.
466 U.S. at 687. A defendant asserting an IAC claim must therefore
satisfy both prongs, and a failure of proof on either prong ends the
matter. See Williams v. Kelly, 816 F.3d 939, 946-47 (4th Cir. 1987).
Under the first prong of Strickland, we apply a "strong presump-
tion" that a trial counsel’s strategy and tactics fall "within the wide
range of reasonable professional assistance." Strickland, 466 U.S. at
689. For a lawyer’s trial performance to be deficient, his errors must
have been so serious that he was not "functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment." Id. at 687. And
the reasonableness of a lawyer’s trial performance must be "evaluated
from counsel’s perspective at the time of the alleged error and in light
of all the circumstances, and the standard of reasonableness is highly
14See Witherspoon v. Illinois, 391 U.S. 510 (1968). Witherspoon autho-
rized a voir dire inquiry to determine whether a potential juror would
always refuse to impose the death penalty. Conversely, a "reverse-
Witherspoon" voir dire inquiry is utilized to determine the existence of
pro-death-penalty bias on the part of a prospective juror. See Morgan v.
Illinois, 504 U.S. 719, 729-34 (1992).
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deferential." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); see
also Strickland, 466 U.S. at 689.
In order to establish prejudice under Strickland’s second prong, a
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." Strickland, 466 U.S. at 694. A reasonable proba-
bility is a "probability sufficient to undermine confidence in the out-
come." Id. As explained below, we agree with the district court that
the Defendants’ remaining IAC claims lack merit, standing alone or
viewed in the aggregate.
1.
First of all, the Defendants maintain that their lawyers should have
further investigated their alleged gang activities in New York and
New Jersey, and that this failure constitutes constitutionally ineffec-
tive assistance. They assert that such an investigation would have led
to the discovery of impeaching evidence on certain prosecution wit-
nesses — i.e., that Light was in jail when Saunders supposedly saw
him in New York, and that Scott’s testimony about gang-related retal-
iation was false.
Notwithstanding whether counsel’s investigation was reasonable,
the Defendants have failed to establish prejudice under Strickland’s
second prong. As the district court explained, substantial negative
repercussions would have resulted to the Defendants from the intro-
duction at trial of such impeachment evidence. Opinion at 38. Many
of the purported impeaching witnesses had acknowledged being
involved in illegal drug transactions with Johnson and Tipton and in
pooling their money with Johnson and Tipton to purchase drugs, and
Light did not deny that he was a regular source of Tipton’s for crack
cocaine. Id. In addition, none of this evidence would have under-
mined the overwhelming evidence before the jury that the Defendants
were involved in a CCE in the Richmond area, and that their enter-
prise had distributed illegal drugs and killed on several occasions in
order to ensure its success. Accordingly, the Defendants could not
have been prejudiced by any purported omissions of their counsel in
this regard, and these claims must be rejected.
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2.
Johnson and Tipton next contend that, under the principle estab-
lished in Morgan v. Illinois, 504 U.S. 719 (1992), their counsel were
constitutionally ineffective in failing to request a specific "reverse-
Witherspoon" inquiry of all prospective jurors. Under Morgan, a capi-
tal defendant has the right to an "inquiry sufficient to ensure — within
the limits of reason and practicality — a jury none of whose members
would ‘unwaveringly impose death after a finding of guilt’ and hence
would uniformly reject any and all evidence of mitigating factors, no
matter how instructed on the law." Tipton, 90 F.3d at 878 (quoting
Morgan, 504 U.S. at 733). Johnson and Tipton contend that their law-
yers failed to ensure that each prospective trial juror was specifically
asked whether he or she would always impose a sentence of death. On
direct appeal, however, this Court foreclosed the prejudice prong of
this contention when, in considering a separate contention concerning
voir dire, we concluded that "the district court’s inquiry into death
penalty attitudes was sufficient to cull out any prospective juror who
would always vote for the death penalty." Id. at 879. Accordingly,
Johnson and Tipton are unable to satisfy Strickland’s second prong,
and their counsel were not constitutionally ineffective for failing to
request a reverse-Witherspoon inquiry.
3.
Johnson and Tipton next contend that their lawyers were constitu-
tionally ineffective for failing to present mitigating evidence regard-
ing the prison conditions they would face if sentenced to life
imprisonment without the possibility of parole. This contention is
made in response to a point argued by the prosecutor during closing:
"Ask yourself, should they be punished beyond incarceration? I’m not
telling you incarceration is nice and a lifetime of incarceration is not
punishment. But think about each and every day of their existence in
jail. They will wake up, bathe, be fed. They will be able to watch TV,
read books. They will be able to use the telephone to talk to their
loved ones." Essentially, Johnson and Tipton contend that, had their
lawyers explained to the jury that actual prison conditions were more
difficult than this benign description would suggest, the jury may
have seen a life sentence as sufficient punishment and rejected the
death penalty.
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As the district court correctly explained, if the lawyers had intro-
duced evidence of prison conditions, the prosecution would simply
have been afforded another opportunity to remind the jurors that
Johnson and Tipton possessed a "proven inclination to engineer mur-
ders from behind prison walls." Opinion at 77. And the Government
could have drawn the stark contrast between prison life and the living
conditions of the incapacitated Greene sisters who were critically
wounded during the Stoney Run murders. Accordingly, the lawyers
acted reasonably in deciding not to describe prison conditions as miti-
gating evidence.
4.
Tipton next asserts that his counsel were ineffective in their
defense of him on the Talley murder counts (Counts Three and Four),
and on the Stoney Run murder counts (Counts Twenty-four and
Twenty-five). We reject both of these contentions.
a.
Tipton maintains that, based on pathologist Dr. Fierro’s testimony,
Tipton, who is right-handed, could not have been Talley’s murderer.
Accordingly, Tipton contends that Hussone Jones’s eyewitness testi-
mony must have been false and that his counsel were ineffective in
failing to exploit this fact. We disagree. The district court expressly
found that "Dr. Fierro’s testimony did not suggest that Tipton, who
was initially sitting on the right of Talley, could not stab Talley on
the right side of his body. . . . Such a diffusion of wounds is consistent
with Jones’ description . . . ." Opinion at 55. In light of this factual
finding, counsel were not deficient in failing to urge the jury to
absolve Tipton on the basis of Dr. Fierro’s testimony.
Tipton also contends that defense counsel were ineffective in fail-
ing to interview and call as a witness "Wildman" Stevens, who,
according to an affidavit submitted during the § 2255 proceedings,
would have contradicted Jones’s testimony that Jones drove Tipton
and Roane to Stevens’s house immediately after Talley’s murder. As
the district court found, however, there was no evidence that Tipton
had advised his counsel that Stevens could contradict Jones’s descrip-
tion. Id. at 58; see Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir.
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1997) (explaining lawyer not ineffective for failing to discover evi-
dence that client knew but withheld). And as the court explained, Tip-
ton’s counsel had no reason to believe that it would be fruitful to
interview Stevens, considering the fact that the evidence indicated
that Stevens was simply another member of the CCE. Opinion at 58.
Accordingly, we affirm the court’s determination that counsel were
not ineffective in defending Tipton on the Talley murder counts.
b.
Tipton also contends that his counsel failed to mount an adequate
defense to the Stoney Run murder counts. In particular, Tipton con-
tends that counsel should have called John Knight and Stoodie Green
as alibi witnesses. Again, we agree with the district court’s denial of
this IAC claim. As the court explained, "[c]onspicuously absent from
the record is any evidence from Tipton that he told counsel that Stoo-
die Green or Knight could exonerate him from involvement in the
Stoney Run murders." Opinion at 64. We agree with the court that
Tipton’s counsel was not constitutionally ineffective in his defense of
the Stoney Run murders.
5.
Tipton claims that his attorney failed to present an adequate case-
in-mitigation at the penalty phase of his trial. In particular, Tipton
relies on the absence of evidence from his mother, his paternal grand-
mother, and an older woman in whose home he resided in early 1992
— specifically contending that these witnesses could have testified to
Tipton’s unfortunate childhood. Again, we agree with the district
court that "[t]he record refutes such a claim," in that counsel pre-
sented extensive evidence through both lay and expert witnesses, and
succeeded in convincing the jurors to find twelve mitigating factors,
a number of which pertained to Tipton’s difficult childhood and his
mental deficiencies. Opinion at 77-80. Indeed, the mitigating evi-
dence in the trial’s penalty phase was sufficiently compelling to con-
vince the jury to return non-death verdicts on three of the six capital
counts against Tipton, despite the existence of numerous and weighty
aggravating factors. In light of the compelling mitigation case pre-
sented by Tipton’s counsel in the trial’s penalty phase, the court cor-
rectly concluded that their performance was not constitutionally defi-
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cient and that Tipton was not prejudiced by the absence of additional
witnesses.
6.
Roane maintains that his trial counsel rendered ineffective assis-
tance at the trial’s penalty phase in failing to contest — and indeed,
in effectively conceding — the sufficiency of the Government’s proof
of the aggravating factor that the murder of Moody involved substan-
tial planning and premeditation. According to Roane, this concession
was error because there was no evidence that he manifested a premed-
itated intent to kill Moody or that there was substantial planning, or
any planning at all. The district court disagreed, and we agree with
the district court. The court found that the evidence of substantial
planning and premeditation was ample and that, in light of that evi-
dence, "[t]he best hope for Roane was to emphasize the evidence in
mitigation rather than challenge the prosecution’s solid case on the
substantial planning aggravating factor." Opinion at 71; see Carter v.
Johnson, 131 F.3d 452, 466 (5th Cir. 1997) (concluding that it was
reasonable for counsel to concede client’s culpability in order to
establish credibility with jury); Bell v. Evatt, 72 F.3d 421, 429 (4th
Cir. 1995) (concluding counsel reasonably conceded defendant’s guilt
of kidnapping to retain credibility for penalty phase). Because the per-
formance of Roane’s counsel was not constitutionally deficient, we
affirm the district court.
7.
Relying on Near v. Cunningham, 313 F.2d 929, 931 (4th Cir.
1963), Roane maintains that a capital defendant may not waive his
presence at trial and that his trial attorney was necessarily deficient
when, after consulting with Roane, he waived Roane’s right to be
present during portions of the jury selection process. Roane contends
that he was prejudiced as a result because, had he been present
throughout voir dire, he would have insisted on using peremptory
strikes to remove three jurors who ultimately served on the jury. He
maintains that, had those strikes been utilized, the outcome of the
trial’s penalty phase would likely have been different.
Again, our decision on direct review forecloses this contention. In
applying plain error review to Roane’s waiver-of-presence claim, we
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observed that Roane did not offer anything to suggest that he was
prejudiced by his intermittent absences from jury voir dire beyond the
conclusory assertion that he was presumptively prejudiced. Tipton, 90
F.3d at 875-76. Accordingly, Roane is unable to satisfy the second
prong of Strickland, and we need not consider this issue further.
F.
Johnson maintains that he is mentally retarded and that, under fed-
eral law, he cannot be executed. He further contends that his counsel
were ineffective for failing to argue this point during sentencing. The
district court rejected these contentions, see Opinion at 80-84, and we
agree.
1.
Under federal law, "[a] sentence of death shall not be carried out
upon a person who is mentally retarded." 21 U.S.C. § 848(l); see also
Atkins v. Virginia, 536 U.S. 304 (2002) (holding that execution of
mentally retarded defendant constitutes cruel and unusual punishment
under Eighth Amendment). The district court found, based on data of
the American Association on Retardation, that an IQ of 75 or below
places a person in the retarded category. Id. at 80. At the penalty
phase of Johnson’s trial, Dr. Dewey Cornell, a psychologist, testified
that, on October 10, 1992, he had administered a Wechsler Adult
Intelligence Scale Test ("WAIS Test"). Johnson exhibited an IQ of
77, which indicated a "generally impaired intelligence," placing him
"just above the level of mental retardation." Importantly, Dr. Cornell
testified that he knew the significance of finding Johnson’s IQ to be
above 75 (i.e., this finding would render Johnson death-eligible), and
that he double-checked his numbers and consulted colleagues before
reaching this conclusion.
Despite Dr. Cornell’s evidence, Johnson asserts that he is in fact
mentally retarded. In support of this proposition, Johnson points to
evidence offered during the penalty phase that his IQ was somewhere
between 69 and 74 in 1985, and he relies on a 1996 publication con-
cluding that the WAIS test tends to inflate IQ scores over the years:
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Individuals appear to gain 3-5 IQ points over a ten year
period. Since the WAIS-R was published in 1981, this infla-
tion factor could mean that the average IQ could be as high
as 105-107 points rather than the accepted value of 100.
Id. at 81 (quoting The Psychological Corporation, An Introduction to
the Wechsler Adult Intelligence Scale, (3d ed. 1996)). Based on these
authorities, Johnson maintains that his actual IQ is below 75 and that
his score of 77 is a product of score inflation. As the district court
explained, however, Dr. Cornell’s evidence that he double-checked
his findings and consulted with colleagues before concluding that
Johnson was not mentally retarded "belies the suggestion that Dr.
Cornell’s analysis did not account for possible variations in his testing
instrument." Id. at 81-82. Accordingly, Johnson is not barred from
execution due to mental retardation.
2.
Johnson next contends that his counsel was ineffective for failing
to assert possible IQ-score inflation at sentencing. We agree with the
district court that Johnson’s trial attorney was not ineffective for fail-
ing to raise this issue. Under Strickland, "counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary." Strickland, 466 U.S. at 691.
And "a particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure
of deference to counsel’s judgments." Id. In this instance, Johnson’s
lawyer was presented with a mental health report, and he was under
no mandate to second-guess that report. See Wilson v. Greene, 155
F.3d 396, 403 (4th Cir. 1998) (rejecting inmate’s claim that counsel
should have pursued mental health defenses where psychological
report indicated inmate was competent to stand trial). In these circum-
stances, Johnson’s counsel was not constitutionally ineffective in this
respect.
IV.
Finally, we turn to the Government’s appeal in No. 03-13, chal-
lenging the district court’s ruling that Roane’s counsel, David Baugh,
was constitutionally ineffective for failing to properly investigate
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Roane’s alibi defense for the Moody murder. See Roane Opinion at
2-11. The court found that Mr. Baugh’s investigation into Roane’s
potential alibi failed both prongs of Strickland, i.e., (1) his perfor-
mance was deficient, and (2) his deficient performance prejudiced the
defense. See Strickland, 466 U.S. at 687. Because the district court
erred in concluding that Mr. Baugh’s representation of Roane was
deficient under the first prong of Strickland, we reverse its vacatur of
Roane’s convictions and sentences on Counts Five, Six, and Seven.15
The district court concluded that Mr. Baugh had a duty to investi-
gate Roane’s potential alibi. As the court explained, Mr. Baugh pos-
sessed information suggesting that Roane might be telling the truth
about staying at the Howard Johnson hotel the night of Moody’s mur-
der — (1) Gina Taylor, an eyewitness, claimed that Roane did not
commit the murder; (2) Mr. Baugh had received a detailed account of
the alibi from Roane, who had been candid about his participation in
other crimes; and (3) Carmella Cooley acknowledged that she had
visited a hotel with Roane. See Roane Opinion at 9. Armed with this
information, we agree that Mr. Baugh had reason to believe that the
15Because Mr. Baugh’s performance was not deficient under Strick-
land, we need not decide whether his performance prejudiced the
defense. See Williams v. Kelly, 816 F.3d 939, 946-47 (4th Cir. 1987). We
express our considerable doubt, however, on whether prejudice could
have ensued here. The court found the testimony of all three witnesses
who implicated Roane in the Moody murder — Berkley, Davis, and
Pepsi Greene — to be credible and corroborated by physical evidence.
And Greene’s testimony was deemed to be "particularly compelling."
Roane Opinion at 4. Conversely, the court found the testimony of the
potential alibi witnesses to be much less credible — Reavis’s testimony
was "flat and unpersuasive," and she would not have testified at trial any-
way; Roane’s testimony was "tenable" but "not compelling"; Rowe’s tes-
timony was "not credible" and "would carry no weight with a jury"; and
Cooley could not remember the date on which she went to a hotel with
Roane. Id. at 5-7. It would be difficult for this testimony (not to mention
the fact that Roane would have been subject to cross-examination about
the other murders and his extensive criminal record), plus one motel
receipt, in someone else’s name, placing Roane a mere two miles away
from the murder scene, to create a reasonable probability that, but for the
lack of such evidence, "the result of the proceeding would have been dif-
ferent." Strickland, 466 U.S. at 689.
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hotel records could generate an alibi for Roane, and Mr. Baugh was
therefore obliged to make a reasonable investigation of them. See Str-
ickland, 466 U.S. at 690-91 (explaining that attorney has duty to make
reasonable investigation or to make reasonable decision not to investi-
gate). We part company with the district court, however, on its con-
clusion that Mr. Baugh failed to fulfill this duty.
We review de novo the district court’s conclusion that Mr. Baugh
was constitutionally ineffective, Smith v. Angelone, 111 F.3d 1126,
1131 (4th Cir. 1997), and we defer to its findings of fact unless they
are clearly erroneous. As the district court found, Mr. Baugh, in keep-
ing with his obligation to investigate: (1) interviewed Cooley, who
stated that she once accompanied Roane and Reavis to the Howard
Johnson but could not verify the date; (2) concluded that Cooley’s
ignorance of the date and apparent hostility would make her a poor
witness; (3) thereafter contacted the Howard Johnson and asked for
records of Linwood Chiles renting a room on the evening of January
12, 1992; (4) went to the hotel himself and attempted to locate the
records; (5) limited his search to the name "Linwood Chiles," and
searched only for records from January 12, 1992; and (6) found no
record of Linwood Chiles being registered at the hotel on the evening
of January 12, 1992. Roane Opinion at 5. At this point, Mr. Baugh
made the strategic choice to focus on Roane’s misidentification
defense, with Gina Taylor as his lead witness.
The district court concluded that Mr. Baugh’s investigation of the
alibi was constitutionally insufficient because he "did not follow
through and seek the records with the vigor demanded by the situa-
tion." Id. at 9. According to the court, "reasonably competent counsel
would have filed a subpoena demanding all records held by the hotel
pertaining to a Mr. Chiles for January of 1992 or spent a few hours
going through all the records at the hotel to assure himself that no
records corroborative of his client’s alibi existed." Id. With all respect
to the district court, we disagree.
As the Supreme Court has explained, a criminal defense lawyer
possesses a duty to conduct a pretrial investigation that is "reason-
able[ ] under prevailing professional norms." Strickland, 466 U.S. at
688; see also Wiggins v. Smith, 539 U.S. 510, 523 (2003). And the
strategic decision of Roane’s lawyer on the extent of his investigation
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into the alibi defense "must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference to coun-
sel’s judgments." Strickland, 466 U.S. at 691; see also Byram v.
Ozmint, 339 F.3d 203, 209 (4th Cir. 2003) (same); Tucker v. Ozmint,
350 F.3d 433, 441-42 (4th Cir. 2003) (same). We are obligated by law
to make "every effort to avoid the distorting effects of hindsight," Str-
ickland, 466 U.S. at 689, and we should evaluate Mr. Baugh’s perfor-
mance "from counsel’s perspective at the time of the alleged error and
in light of all the circumstances . . . ." Kimmelman v. Morrison, 477
U.S. 365, 381 (1986).
Applying these principles to this situation, Mr. Baugh’s perfor-
mance was constitutionally reasonable and thorough. He interviewed
Carmella Cooley, who could not remember when she stayed at a hotel
with Roane. He called the hotel and requested records of Linwood
Chiles from the only relevant night — the night of the murder. And
when that search was not fruitful, he went to the hotel and searched
for the records himself. Only after this final step in his investigation
did Mr. Baugh turn to and focus on Roane’s misidentification
defense. In these circumstances, we decline to act as a Monday-
morning quarterback and second-guess Mr. Baugh’s efforts, simply
because we are now armed with more information and the benefit of
hindsight.
Furthermore, the authorities relied upon by the district court miss
the mark, involving situations in which a lawyer has failed to investi-
gate a defense at all or has performed an investigation so minimal that
no strategic reason could be given for the failure to investigate fur-
ther. See, e.g., United States v. Russell, 221 F.3d 615, 621 (4th Cir.
2000) (finding ineffective representation when lawyer failed to inves-
tigate defendant’s criminal record after defendant advised counsel that
his convictions had been overturned); Hooper v. Garraghty, 845 F.2d
471, 474-75 (4th Cir. 1988) (explaining counsel deficient in failing to
investigate insanity defense, after learning from client, client’s family,
and prison psychologist of client’s insanity); Hoots v. Allsbrook, 785
F.2d 1214, 1219-20 (4th Cir. 1986) (finding lawyer’s decision not to
interview eyewitnesses unreasonable); Nealy v. Cabana, 764 F.2d
1173, 1174 (5th Cir. 1985) (finding counsel ineffective in failing to
seek evidence from witnesses when client claimed those witnesses
committed crime). Unlike the circumstances underlying those deci-
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sions, this case does not involve a situation where counsel neglected
to investigate, or where his investigation was so cursory that we can
now — eleven years on and with the benefit of hindsight — declare
it constitutionally unreasonable.
As the Sixth Circuit aptly explained in Coe v. Bell, 161 F.3d 320
(6th Cir. 1998), what the lawyer did not miss is "just as (or more)
important as what the lawyer missed." Id. at 342. Here, Mr. Baugh
was diligent and highly effective in his representation of Roane dur-
ing this litigation — he conferred with Roane, he investigated the
crime scene, he located an eyewitness to the Moody murder who pro-
vided a physical description of a murderer dissimilar to Roane, he
learned that Moody’s mother had advised the police that another man
had been searching for Moody hours before his murder, and he
aggressively and professionally cross-examined the Government’s
witnesses. Mr. Baugh investigated the possible Moody alibi — a
weak one at that — but when the investigation proved unfruitful, he
put on a strong misidentification defense. According a "heavy mea-
sure of deference" to Mr. Baugh, as we must, his representation of
Roane was not constitutionally ineffective. We therefore reverse the
vacatur of Roane’s convictions and sentences on Counts Five, Six,
and Seven.
V.
Pursuant to the foregoing, we affirm the award of summary judg-
ment to the Government in Nos. 03-25, 03-26, and 03-27, and we
reverse the district court’s award of relief to Roane in No. 03-13.
AFFIRMED IN PART AND REVERSED IN PART
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