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No. 04-1136

In the Supreme Court of the United States

JAMES H. ROANE, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
(CAPITAL CASE)

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

JOHN C. RICHTER
Acting Assistant Attorney
General

ROBERT J. ERICKSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court committed reversible plain error by failing to instruct the jury that it must unanimously find the three or more predicate acts con stituting the "continuing series of violations" required for conviction under the continuing-criminal-enterprise statute, 21 U.S.C. 848(c)(2).

2. Whether, to convict a defendant of engaging in a continuing criminal enterprise, the jury must unani mously find the identities of the "five or more other persons" whom the defendant organized, supervised, or otherwise managed, 21 U.S.C. 848(c)(2)(A).

3. Whether, in defending a drug kingpin charged with committing a series of capital murders, trial counsel rendered ineffective assistance in searching for, but failing to find, a motel receipt that-assuming peti tioner would have been willing to testify at trial-could have marginally corroborated petitioner's asserted pre sence at a motel near the murder scene on the night of one of the murders, but could not have established petitioner's whereabouts at the time of the murder itself.

No. 04-1136

JAMES H. ROANE, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
(CAPITAL CASE)

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-43a) is reported at 378 F.3d 382. The opinions of the district court (Pet. App 44a-63a, 64a-190a) are unreported. A prior opinion of the court of appeals is reported at 90 F.3d 861.

JURISDICTION

The judgment of the court of appeals was entered on August 9, 2004. A petition for rehearing was denied on October 5, 2004 (Pet. App. 191a-192a). On December 16, 2004, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including February 2, 2005. On January 24, 2005, the Chief Justice further extended the time within which to file a petition for a writ of certiorari to and including February 22, 2005, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Eastern District of Virginia, petitioner was convicted on one count of engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. 848(a) (Count 2),1 and three counts of intentional murder in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. 848(e) (Counts 5, 8, and 11).2 Following the penalty hearing, the jury recommended that petitioner be sentenced to death on Count 5 (which pertained to the murder of Douglas Moody), but was unable to reach a unanimous sentencing recommenda tion with respect to the other capital counts (Counts 8 and 11). In accordance with the jury's recommendation, the district court sentenced petitioner to death.3 The court of appeals affirmed all of petitioner's convictions and sentences except for his conviction and sentence on the drug-conspiracy count, United States v. Tipton, 90 F.3d 861 (4th Cir. 1996), and this Court denied certi orari, 520 U.S. 1253 (1997).

Petitioner thereafter sought collateral relief under 28 U.S.C. 2255. Following an evidentiary hearing, the district court granted the motion in part and denied it in part. Concluding that petitioner's trial counsel rendered ineffective assistance in his defense of the Moody mur der, the district court vacated petitioner's convictions and sentences (including his death sentence) on Counts 5, 6, and 7. The district court denied petitioner's re maining claims. The court of appeals reversed the district court's decision vacating petitioner's convictions and sentences on Counts 5, 6, and 7, and affirmed the district court's denial of petitioner's other claims.

1. Petitioner and co-defendants Cory Johnson and Richard Tipton4 were the principal "partners" in a large- scale drug-trafficking organization that originated in Trenton, New Jersey, in 1989, and thereafter operated in the Richmond, Virginia, area between 1990 and 1992. Pet. App. 3a. The partners regularly received powder cocaine from suppliers in New York City, cooked the powder cocaine into crack, and distributed it through a network of 30 to 40 street-level dealers. Ibid. The con spiracy became exceedingly violent in its later stages. During a short period in early 1992, petitioner, Johnson, and Tipton "were variously implicated in the murders of ten persons within the Richmond area-all in relation to their drug-trafficking operation and either because their victims were suspected of treachery or other mis feasance, or because they were competitors in the drug trade, or because they had personally offended one of the 'partners.'" Ibid. (quoting Tipton, 90 F.3d at 868). Petitioner was convicted on three capital murders (he was implicated, but uncharged, in a fourth) and on one non-capital murder.

a. The uncharged Talley murder. On January 4, 1992, petitioner and Tipton drove one of their under lings, Douglas Talley, to a deserted area in South Richmond. Talley had recently mishandled the proceeds of a $1000 crack-cocaine consignment. He was also suspected of being a police informant. After Tipton and petitioner got out of the car to confer, Tipton got into the front seat next to Talley and petitioner got into the back seat behind him. Petitioner then grabbed Talley from the rear, while Tipton stabbed him to death. In all, 84 stab wounds were inflicted to Talley's head, neck, and upper body during an attack that lasted between three and five minutes. Pet. App. 4a; Gov't C.A. Br. 5-6.5

b. The Moody murder (Count 5). On successive nights in January 1992, rival drug dealers Douglas Moody and Peyton Maurice Johnson were killed in order to eliminate unwanted competition. A day or two before Moody was killed, petitioner retrieved a pistol that an underling, Robert "Papoose" Davis, had stored for Johnson. Thereafter, in the early morning of January 13, 1992, petitioner and Tipton went to Moody's apart ment, where Tipton twice shot Moody in the back. Moody, however, was able to escape from the apartment by jumping through a window. Petitioner and Tipton pursued Moody, with petitioner stopping at a nearby apartment to retrieve a military-style knife that another underling, Priscilla "Pepsi" Greene, had kept for the partners' use. Petitioner and Tipton found Moody in the yard outside the apartment. Petitioner followed Moody into an adjoining alley, where he stabbed Moody to death. Petitioner immediately returned the knife to "Pepsi" Greene and instructed her to dispose of it. Petitioner and Tipton then went to "Papoose" Davis' house, telling Davis that they had "got him" and that it was "hot" on the street. Pet. App. 4a; Gov't C.A. Br. 6.

c. The Peyton Maurice Johnson murder (Count 8). Later in the day on January 13, 1992, Pam Williams agreed to purchase semiautomatic firearms for peti tioner in exchange for crack cocaine. Petitioner accom panied Williams to a gun store, where he pointed out three 9mm. semiautomatic pistols that he wanted her to buy. Williams then completed the federal firearms- transaction forms. On January 14, 1992, after her 24- hour identification check had been completed, Williams picked up the three firearms, paying $1492 in cash that petitioner had given her. Petitioner, Cory Johnson, and an associate known as "E.B." then placed the guns in a tote bag and delivered them to "Papoose" Davis for safe keeping. Several hours later, after retrieving the wea pons with Cory Johnson and "E.B.," petitioner searched the neighborhood for Peyton Maurice Johnson, finally locating him in an illegal tavern. A short time later, Cory Johnson and an unidentified accomplice entered the tavern and shot Peyton Johnson to death. Peti tioner, Cory Johnson, and "E.B." then returned the guns to "Papoose" Davis, instructing him to wipe off the fingerprints. Ballistics tests connected the murder weapons to two of the firearms that Williams had purchased for petitioner earlier that day. Pet. App. 4a; Gov't C.A. Br. 8-9.

d. The Louis Johnson murder (Count 11). On the evening of January 29, 1992, petitioner was riding in his car with Cory Johnson and another drug kingpin, Lance Thomas. When they pulled into an alley, petitioner saw Louis Johnson walking with a group of men. Louis Johnson was a bodyguard for a rival drug dealer who was believed to have threatened Cory Johnson with a shotgun on a previous occasion. Petitioner stopped the car, got out, approached Louis Johnson, and shot him. Cory Johnson and Thomas thereafter fired at Louis Johnson with semiautomatic pistols. Either Cory Johnson or Thomas then shot Louis Johnson twice at close range as he lay wounded on the ground. Pet. App. 4a-5a; Gov't C.A. Br. 9.

e. The Brown murder (Count 14). On February 1, 1992, petitioner, Johnson, and Thomas met outside the apartment of Torrick Brown, whom petitioner suspected of "messing around" with one of his girlfriends. Petitioner knocked on the door, which was answered by Brown's step-sister, and asked to see Brown. When his step-sister summoned Brown to the door, petitioner and his confederates opened fire with semiautomatic pistols, killing Brown and seriously wounding his step-sister. Petitioner was arrested the following day in a police raid, and the semiautomatic weapons that petitioner had purchased were seized. Tipton and Johnson remained at large and committed other CCE-related murders, including a double killing on February 19, 1992, that resulted in the death of another underling, Linwood Chiles, and the serious wounding of "Pepsi" Greene. Pet. App. 5a-6a; Gov't C.A. Br. 10.

2. At trial, "Pepsi" Greene and another underling, Denise Berkley, testified as eyewitnesses to petitioner's fatal stabbing of Moody. C.A. App. 4423-4432, 4492, 5272-5277, 5294-5300, 5304. "Papoose" Davis testified that he had provided a pistol to petitioner shortly before the murder and that petitioner and Tipton had said that they "got him" and that it was "hot" on the street when they visited his house immediately after the murder. Id. at 4623-4626. Another co-conspirator, Sterling Hardy, testified that he had overheard a jailhouse con versation between petitioner and Tipton in which they were trying to determine the identity of a woman to whom they gave a knife. Id. at 4916-4918.

In addition to impeaching both Greene and Berkley, C.A. App. 4485-4495, 5292-5304, petitioner's trial counsel presented evidence suggesting that Moody had been murdered by someone other than petitioner. For example, Gina Taylor, a neighbor of Moody's, testified that she saw a short, thin person stabbing Moody in the alley outside his house. Although she could not identify the person, she testified that the assailant could not have been petitioner because of his diminutive size. Id. at 5626-5631, 5636. A police detective confirmed that Taylor had described the killer as a short, thin black male during an interview soon after the murder. Id. at 5652-5654. Another police detective testified that he had been told by Moody's mother that a person named Keith had been looking for her son shortly before he was murdered; that some of Keith's friends had broken into her house a week earlier, armed with automatic wea pons; and that her son was hiding from a person named Maurice on the day he was killed. Id. at 5655-5656, 5659-5660. Based on the information obtained from Moody's mother, the detective testified, the initial focus of the investigation had been on "Little Keith" Barkley, a small-featured black male (id. at 5652-5655), but the focus changed, according to the detective, once "Pepsi" Greene gave her account of the murder a few weeks later. Petitioner did not testify.

3. On direct appeal, the court of appeals addressed various challenges to the district court's instructions on the CCE charge, including a claim that the jury should have been advised that it "must be unanimous as to which three (at least) predicate violations each [defendant] committed and which five (at least) persons each [defendant] supervised." Tipton, 90 F.3d at 885. The court of appeals noted that none of the defendants had "requested a 'special unanimity' instruction on these two elements," and that none had "objected to the court's failure to give one sua sponte." Ibid. The court therefore reviewed the claim "only for plain error," and it found "none warranting correction." Ibid. The court held that, assuming "a special unanimity instruction is required, upon request, as to the predicate violation element," the defendants "could have suffered no actual prejudice" from the lack of one, because "the jury unanimously found each [defendant] guilty of at least five predicate violations: the conspiracy charged in Count 1, the drug possession charged in Count 32, and at least three of the § 848(e) murders." Ibid. As to "a special unanimity instruction on the five supervisees element," the court of appeals held that "none is re quired." Ibid.

4. After the affirmance on direct appeal, petitioner filed a Section 2255 motion collaterally attacking his convictions and sentences, including his capital convic tion and death sentence for the Moody murder. C.A. App. 332-339. As relevant here, petitioner alleged that his trial counsel performed deficiently by inadequately investigating and defending the Moody murder charge. Id. at 384-386. In support of that allegation, petitioner made an evidentiary proffer (1) that Demetris Rowe, a purported eyewitness to Moody's murder, had stated that the murder was committed by Johnson and Tipton and that petitioner was not present; (2) that petitioner had informed one of his trial counsel, David Baugh, before trial that he was at a Richmond motel at the time Moody was killed and that a woman (Carmella Cooley) could account for his presence at the motel; (3) that Baugh had interviewed, but had not called as a witness, the woman identified by petitioner, and had attempted to obtain, without success, corroborating motel records; and (4) that petitioner's Section 2255 investigator had found a motel receipt from a Howard Johnson's motel in Richmond, showing that "Larry Chiles," of 1016 Clay Street, checked into the motel for an overnight stay on January 12, 1992 (the night of Moody's murder) and that "Linwood Chiles," also of 1016 Clay Street, checked into the same motel for an overnight stay on January 2, 1992. See id. at 467, 1168-1173, 2110-2111.

At an evidentiary hearing on the ineffective- assistance claim, petitioner testified that, although he supported himself through drug trafficking in January 1992 (C.A. App. 2141, 2144) and associated with Tipton, Johnson, and other members of the conspiracy, he had not been involved in Moody's murder. According to petitioner, he and co-defendant Sandra Reavis6 spent the night Moody was murdered together at a Howard Johnson's motel in Richmond, and petitioner did not learn about Moody's murder until they checked out the next morning. Id. at 2149, 2160-2161. Petitioner testi fied that, on the evening of January 12, Linwood Chiles drove petitioner, Reavis, and Carmella Cooley (a friend of Reavis's) to the motel, and Chiles rented a room with cash provided by petitioner. According to petitioner, Chiles and Cooley departed shortly thereafter, but petitioner and Reavis remained in the motel room until check-out time the next morning. Id. at 2152-2160, 2166-2167, 2169. Petitioner testified that he told Baugh he had not killed Moody, but instead had been at the motel with Reavis, Cooley, and Chiles. Id. at 2161-2162, 2165-2166.

Reavis corroborated petitioner's alibi, testifying that Chiles and Cooley had taken petitioner and her to the motel around 9:00 p.m. on January 12, and that she and petitioner had spent the entire night together at the motel. C.A. App. 2126-2128. Reavis testified that she could clearly recall the events of that evening because the Richmond police had initially charged her as a participant in Moody's murder. Id. at 2128. Reavis conceded, however, that she had not told the police during an interview shortly after the murder that she and petitioner were in a motel at the time of the murder or that Chiles and Cooley knew of her and petitioner's whereabouts on the night of the murder. Id. at 2130- 2131, 2133.

Baugh testified that petitioner had told him before trial that he was at a motel, in the company of Reavis, Chiles, and Cooley, on the night of the murder, and that Chiles rented the room. C.A. App. 2176-2178, 2178d. Baugh testified that he had visited the motel in an attempt to locate corroborating records, but was unable to find any. Id. at 2176-2178, 2178b. Baugh also inter viewed Cooley before trial, but recalled that "she was not cooperative or * * * helpful," that her attitude "border[ed] on hostile," and that "she couldn't give [him] a date" to corroborate an alibi. Id. at 2178. Baugh testified that he would have subpoenaed Cooley "[i]f she had provided * * * a solid, corroborable alibi," but, based on his interview, he decided not to call her as a de fense witness. Id. at 2178n-2178o.

Baugh also testified that he would have done things differently at trial if he had had the receipt showing that "Larry Chiles" had rented a room at the motel on January 12. While acknowledging that "there [we]re problems" with the fact that the motel receipt bore another person's name, Baugh said that the receipt could have provided "some kind of objective confirma tion" that would have permitted petitioner to testify about his whereabouts on the night of Moody's murder. C.A. App. 2178d-2178e, 2178q-2178r, 2178v. Although he did not know whether he could have "put [petitioner] there [at the motel] on th[at] date," Baugh testified that the records would at least have given him "a good starting point to determine some form of corroboration." Id. at 2178v-2178w.

Finally, Demetris Rowe gave her account of the Moody murder. She testified that she had been sitting on a porch across from the alley in which Moody was murdered for much of the evening, drinking "pints of gin" with a friend. C.A. App. 2178y-2179. According to Rowe, she heard loud hollering and the sounds of a fight coming from the house where Moody lived, and then saw Moody emerge from the doorway of the house while struggling with Johnson. Id. at 2179-2181, 2184-2185. Rowe testified that she also saw "Pepsi" Greene, Curt Thorne ("Pepsi" Greene's boyfriend and later a murder victim of Tipton and Johnson), Tipton, and an unknown person emerge from the house. Id. at 2180-2185. Rowe said that petitioner was not in the group, and that she had seen petitioner and Reavis leave together in a taxi cab at approximately 8:30 p.m. Id. at 2181-2182, 2187- 2183, 2190.

5. The district court granted petitioner Section 2255 relief. Pet. App. 44a-63a. Concluding that his trial counsel had been deficient in failing to locate the motel receipt and that petitioner had been prejudiced as a result, the district court vacated petitioner's convictions and sentences on the three counts related to the Moody murder (Counts 5, 6, and 7), including his death sen tence on the Section 848(e) murder count.7

a. The district court explained that defense counsel relied on a misidentification theory for the Moody murder, suggesting that Moody had been killed by someone other than petitioner. Pet. App. 48a-49a. Counsel did not present an alibi defense, even though, as the district court found, petitioner told counsel that he had not killed Moody, that he and Reavis had spent the night in a motel near the location where Moody was murdered, and that the couple had been accompanied to the motel by Carmella Cooley and Linwood Chiles, the latter of whom had driven the group to the motel and rented the room for cash. Id. at 49a.

The district court found that counsel had investi gated petitioner's claimed alibi to some extent. The court found that Baugh had interviewed Cooley, who recalled having accompanied petitioner and Reavis to the motel on one occasion but could not recall the exact date, and that Baugh had "concluded that Cooley's ignorance of the date and her apparent hostility made her a bad defense witness." Pet. App. 50a. The court also found that Baugh had "contacted the Howard Johnson's and asked if the hotel had a record of Linwood Chiles renting a room on January 12, 1992," and that, after being told that it did not, Baugh "went to the hotel and attempted to find such a record himself." Ibid.

The court found, however, that Baugh had "limited his search to looking for a record of a room rental under the name of Linwood Chiles for the night of January 12, 1992," and that Baugh could locate no such record. Pet. App. 50a. By contrast, petitioner's Section 2255 investi gator had been able to locate a "Larry Chiles" motel receipt for the night of January 12, 1992, after only a few hours of searching through archived records at the motel. Id. at 50a-51a. The court found that Baugh "could have located the same documents" if he "had subpoenaed the records" or "spent three hours looking through the hotel records." Id. at 51a. Had Baugh dis covered the motel records, the court found, petitioner "would have testified consistent with his [exculpatory] testimony at the evidentiary hearing." Ibid. And based on petitioner's "demeanor and the details of his account," the court found that petitioner's "testimony that he was at a hotel at the time of the Moody murder, although not compelling, was tenable." Id. at 52a.

b. Applying the legal standard in Strickland v. Washington, 466 U.S. 668 (1984), to the facts that it found, the district court concluded both that trial counsel had been constitutionally deficient in failing to locate the motel receipt and that it was reasonably probable that the jury's verdict on the counts related to the Moody murder would have been different but for trial counsel's deficient investigation. Pet. App. 54a-59a.

In concluding that counsel had performed deficiently, the court explained that counsel had "substantial infor mation" indicating that petitioner's "claim that he was at a hotel at the time of the Moody murder was credible," and therefore "had every reason to believe the hotel records would provide objective evidence to corroborate [petitioner's] story." Pet. App. 55a. Although the court "d[id] not doubt counsel's testimony that he called the hotel a couple of times and on one occasion went to the hotel to find the records," the court determined that "reasonably competent counsel would have filed a sub poena demanding all records held by the hotel per taining 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. at 56a. The court thus held that trial counsel's failure to locate the motel records and to present an alibi defense was "attributable to the unreasonably limited amount of time and resources counsel devoted to looking for corroborative hotel records." Id. at 57a.

In concluding that counsel's deficient performance had prejudiced petitioner, the district court acknowl edged that the evidence of petitioner's guilt was "strong," and that the motel receipt was only "some what," "indirectly," and "marginally" corroborative of the asserted alibi, which was itself "thin." Pet. App. 57a- 58a. The court nevertheless concluded that petitioner's thin alibi defense would have sufficiently bolstered the misidentification defense to create a reasonable pro bability of acquittal on the Moody murder counts. Id. at 58a.8

6. The court of appeals reversed the district court's grant of Section 2255 relief as to the Moody murder counts and affirmed the district court's denial of peti tioner's other claims for relief. Pet. App. 1a-43a.

a. With respect to the Moody murder counts, the court of appeals held that the district court had "erred in concluding that [defense counsel's] representation of [petitioner] was deficient under the first prong of Strickland." Pet. App. 39a-40a. The court of appeals agreed that counsel "had reason to believe that the hotel records could generate an alibi for [petitioner]," and that he "was therefore obligated to make a reasonable investigation of them." Id. at 40a. Assessing the rea sonableness of counsel's investigation without "the dis torting effects of hindsight" and with "a heavy measure of deference to counsel's judgments," id. at 41a (quoting Strickland, 466 U.S. at 689, 691), however, the court of appeals determined that counsel's "performance was constitutionally reasonable and thorough," id. at 42a. The court explained that

[David Baugh] interviewed Carmella Cooley, who could not remember when she stayed at a hotel with [petitioner]. He called the hotel and re quested 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 the investigation did Mr. Baugh turn to and focus on [petitioner's] mis identification defense.

Ibid. "In these circumstances," the court of appeals "decline[d] 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." Ibid. The court noted that "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." Id. at 42a-43a.

Quoting the Sixth Circuit, the court of appeals pointed out that "what the lawyer did not miss is 'just as (or more) important as what the lawyer missed.'" Pet. App. 43a (quoting Coe v. Bell, 161 F.3d 320, 342 (6th Cir. 1998), cert. denied, 528 U.S. 842 (1999)). And what petitioner's trial counsel did do, the court said, he did in a "diligent and highly effective" manner. Ibid. In particular, Baugh

conferred with [petitioner], * * * investigated the crime scene, * * * located an eyewitness to the Moody murder who provided a physical description of a murderer dissimilar to [petitioner], * * * learned that Moody's mother had advised the police that another man had been searching for Moody hours before his murder, and * * * aggressively and professionally cross- examined the Government's witnesses.

Ibid. In short, the court explained, petitioner's counsel investigated the "weak" alibi defense and elected to "put on a strong misidentification defense" only "when the [alibi] investigation proved unfruitful." Ibid.

The court of appeals also expressed "considerable doubt" that petitioner was prejudiced by counsel's fail ure to discover the motel receipt. App., infra, 2a n.15.9 The court explained that the district court had found the testimony of all three of the government's witnesses to the Moody murder to be "credible and corroborated by physical evidence," but had found the testimony of petitioner's potential alibi witnesses to be "much less credible." Ibid. In light of those credibility deter minations, the court of appeals said that

[i]t would be difficult for this [alibi] testimony (not to mention the fact that [petitioner] 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 [petitioner] a mere two miles away from the murder scene, to create a reasonable probability that, but for the lack of such evidence, "the results of the proceeding would have been different."

Ibid. (quoting Strickland, 466 U.S. at 689).

b. In otherwise affirming the district court's de cision, Pet. App. 13a-39a, the court of appeals rejected petitioner's claim for relief based on the district court's failure to give, sua sponte, a special unanimity instruc tion on the three or more predicate acts composing the "continuing series of violations" required for conviction under the CCE statute. Id. at 19a-20a. The court of appeals noted that it had assumed on direct appeal what Richardson v. United States, 526 U.S. 813 (1999), subsequently held-namely, that there is a unanimity requirement-but had concluded that petitioner and his co-defendants were not entitled to relief under the plain- error standard because the jury "unanimously found each guilty of at least five predicate violations." Pet. App. 19a (quoting Tipton, 90 F.3d at 885). The court went on to say that a Richardson instructional error is "a procedural defect rather than a structural one," and reiterated that petitioner could not have been prejudiced by the error in light of the jury's unanimous verdicts finding him guilty of more than a sufficient number of predicate violations to satisfy the "continuing series of violations" requirement. Id. at 20a.10

ARGUMENT

1. Richardson v. United States, 526 U.S. 813 (1999), holds that jurors must agree on the three or more predicate acts that constitute the "continuing series of violations" element, see 21 U.S.C. 848(c)(2), of a CCE offense. While neither petitioner nor his co-defendants requested a jury instruction to that effect, petitioner contends (Pet. 13-17) that, for two independent reasons, the failure to give such an instruction was reversible error. The court of appeals correctly held otherwise, and its decision does not conflict with the decision of any other court of appeals. Further review is therefore un warranted.

a. Petitioner argues (Pet. 16-17) that the instruc tional error was a structural error that requires auto matic reversal. This Court has denied petitions that raise the same claim, see Monsanto v. United States, 125 S. Ct. 153 (2004) (No. 03-10349); Dean v. United States, 532 U.S. 943 (2001) (No. 00-6619), and there is no reason for a different result here.

In Richardson, the Court reserved the question whether the failure to give a unanimity instruction on the "continuing series of violations" element in a CCE case was amenable to harmless-error review. 526 U.S. at 824. The Court has since made clear, however, that an instruction that "omits an element of the offense" altogether "does not necessarily render a criminal trial fundamentally unfair," and that such an error is therefore subject to harmless-error analysis. Neder v. United States, 527 U.S. 1, 9 (1999). As petitioner acknowledges (Pet. 17), every court of appeals to con sider the question has therefore recognized that an instruction that merely omits the unanimity require ment with respect to an element of the CCE offense cannot be categorized as structural.11 As one of those courts has explained, "[b]ecause Richardson errors affect only the way the jury is instructed on an element of the offense, they do not taint the trial 'from beginning to end' or undermine 'the framework within which the trial proceeds.'" United States v. Montalvo, 331 F.3d 1052, 1057 (9th Cir. 2003) (quoting Arizona v. Ful minante, 499 U.S. 279, 309-310 (1991)), cert. denied, 541 U.S. 1011 (2004).

b. In the alternative, petitioner argues (Pet. 13-16) that this Court should grant certiorari to resolve an asserted circuit conflict on how harmless-error analysis applies to Richardson claims. Like the court below, however, every other court of appeals to consider the question has concluded that a Richardson error is harmless where, as here, the jury found the defendant guilty of three or more predicate offenses that are suf ficient to satisfy Section 848's "continuing series of violations" element.12

It is true, as petitioner points out (Pet. 14-15), that some courts have explicitly addressed the "relatedness" of the predicate offenses as part of the harmless-error analysis.13 But there is no indication that the re latedness of the predicate offenses was genuinely at issue in any of the cases in which relatedness was not independently assessed, and no court of appeals has taken the position that unrelated Title 21 predicate offenses can satisfy Section 848's "continuing series of violations" element. Certainly the Fourth Circuit has not. In United States v. Brown, 202 F.3d 691 (2000), the case in which the Fourth Circuit first held that Richardson errors are subject to harmless-error analysis, the court cited the First Circuit case on which petitioner relies and stated that a Richardson error is harmless "if the jury that convicted a defendant on a CCE charge also convicted that defendant of at least three related drug violations, and the related violations were also alleged to be predicate violations constituting the 'continuing series.'" Id. at 699-700 (citing United States v. Escobar-de Jesus, 187 F.3d 148, 162 (1st Cir. 1999), cert. denied, 528 U.S. 1176 (2000)) (emphasis added). Subsequently, in United States v. Stitt, 250 F.3d 878 (2001), cert. denied, 535 U.S. 1074 (2002), the Fourth Circuit found Brown's "relatedness" require ment satisfied where three of the predicate offenses of which the defendant was found guilty were Section 848(e) murders committed in furtherance of the CCE. Id. at 884 nn.4-5.

Any "relatedness" challenge to the predicate con victions in this case would likewise fail. As in Stitt, the CCE count incorporated by reference the other Title 21 counts charged in the indictment and alleged that those incorporated violations (including the CCE-related murder counts) were "part of a continuing series of vio lations" for purposes of the CCE offense. C.A. App. 90. And as in Stitt, any three of the five predicate offenses of which petitioner was found guilty (a drug conspiracy count, a substantive drug-trafficking count, and three CCE-related murder counts) "are sufficient to constitute the 'three related drug violations' necessary to satisfy the requirements of Brown." Stitt, 250 F.3d at 884 n.5 (quoting Brown, 202 F.3d at 700). See also Tipton, 90 F.3d at 887 (noting, on direct review, that the jury instructions required, and the evidence established, a "substantive connection between the murders and the continuing criminal enterprise").

c. Even if the court of appeals' holding that "the trial court's failure to give a Richardson-type instruc tion did not prejudice [petitioner]" (Pet. App. 20a) conflicted with the decision of another court of appeals, this case would not be a suitable vehicle for resolving the conflict. Petitioner forfeited his claim by failing to raise it in the district court, see Tipton, 90 F.3d at 885; Pet. App. 19a-20a, and would not be entitled to relief even if the error were prejudicial. A showing that an error to which there was no objection is "prejudicial," or even that it is "structural," does not, by itself, establish reversible plain error. A defendant must also show that the error was "plain"-i.e., "clear" or "obvious"-at the time of appeal and that it "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 466-470 (1997) (internal quotation marks omitted). The error in this case was not plain at the time of petitioner's direct appeal, which antedated Richardson, and given that the jury unanimously found petitioner guilty of at least five related predicate CCE violations, it is highly doubtful that the error can be said to have seriously affected the fairness, integrity, or public reputation of judicial proceedings, cf. United States v. Cotton, 535 U.S. 625, 632-633 (2002); Johnson, 520 U.S. at 469-470.14

2. Petitioner also contends (Pet. 17-22) that the court of appeals failed to accord proper deference to the district court's factual findings in holding that-con trary to the conclusion of the district court-defense counsel rendered reasonable professional assistance in investigating and presenting a defense to the Moody murder counts. Petitioner is mistaken. Whether counsel's performance was constitutionally reasonable is a mixed question of law and fact, not a purely factual question, and, under the applicable de novo standard of review, it was correctly resolved against petitioner by the court of appeals. Further review is therefore un warranted.

a. Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant raising a Sixth Amendment in effective-assistance-of-counsel claim must demonstrate both that counsel's performance was so deficient as to fall "below an objective standard of reasonableness" (id. at 688) and that, as a result of counsel's unpro fessional errors, "there is a reasonable probability that * * * the results of the proceeding would have been different" (id. at 694). As Strickland makes clear, "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact" (id. at 698), and thus are subject to de novo review. See Williams v. Taylor, 529 U.S. 362, 400 (2000) (opinion of O'Connor, J.) (Strickland claims are subject to plenary review, except where displaced by 28 U.S.C. 2254(d) in habeas corpus cases brought by state prisoners).15 The court of appeals expressly invoked this standard, stating that it would "review de novo mixed questions of law and fact addressed by the district court-including the issues of whether a lawyer's performance was constitutionally adequate." Pet. App. 13a. And, with respect to the specific ineffective- assistance claim at issue here, the court of appeals said that it would "review de novo the district court's conclusion that Mr. Baugh was constitutionally ineffec tive," and would "defer to its findings of fact unless they are clearly erroneous." Id. at 40a. Petitioner cites no decision that reviewed a lower court's determination on either the performance or the prejudice component of a Strickland claim deferentially.

b. Reviewing the district court's decision under the proper standard of review, the court of appeals correctly concluded-contrary to the district court's determination-that defense counsel's investigation of the Moody murder charges was professionally rea sonable.

i. This Court has repeatedly stated that "[j]udicial scrutiny of a counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight," so that the conduct can be evaluated "from counsel's perspective at the time" and in light of all the circumstances. Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689). The requirement that counsel's per formance be scrutinized deferentially is based on the recognition that it is "all too tempting" for a convicted defendant to "second-guess counsel's assistance" and "all too easy" for a court to find an act or omission "un reasonable" because it was "unsuccessful." Strickland, 466 U.S. at 689. Accordingly, courts "must indulge a 'strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance." Bell v. Cone, 535 U.S. at 702 (quoting Strickland, 466 U.S. at 689).

The same principles apply when the decision at issue is an investigative one. This Court's cases make clear that a pretrial investigation is "measured for 'rea sonableness under prevailing professional norms,'" which "includes a context-dependent consideration of the challenged conduct as seen 'from counsel's perspec tive at the time,'" Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 688-689), and that courts must "apply[] a heavy measure of deference to counsel's judgments," Strickland, 466 U.S. at 691. That means that, while "[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[,] * * * strategic choices made after less than complete investi gation are [likewise] reasonable * * * to the extent that reasonable professional judgments support the limitations on investigation." Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690-691).

ii. The court of appeals accepted the district court's finding that defense counsel "possessed information suggesting that [petitioner] might be telling the truth about staying at the Howard Johnson hotel the night of Moody's murder." Pet. App. 40a. That information, the court of appeals concluded, gave counsel "reason to be lieve that the hotel records could generate an alibi [defense]," and, accordingly, "obligated [counsel] to make a reasonable investigation of them." Ibid. The court of appeals also accepted the district court's findings regarding counsel's unproductive interview of Carmella Cooley; his requests for motel records per taining to Linwood Chiles's renting of a room on the night of the Moody murder (January 12, 1992); and counsel's unsuccessful efforts in personally searching the motel's records for a receipt for Linwood Chiles on the night of the Moody murder. Ibid. In addition, the court of appeals accepted the district court's findings about the investigation conducted by petitioner's Section 2255 investigator, during which the investigator spent a number of hours searching through motel occupancy records and located a January 2, 1992, receipt for Linwood Chiles and a January 12, 1992, receipt for "Larry Chiles." Id. at 11a-12a, 41a.

The court of appeals disagreed only with the district court's conclusion that defense counsel performed de ficiently in failing to undertake an investigation of the same breadth as was later conducted by petitioner's Section 2255 investigator. The court of appeals con cluded that defense counsel had reasonably confined his search to records for Linwood Chiles for January 12, 1992-the night of the Moody murder, and thus "the only relevant night" (Pet. App. 42a) (emphasis omitted) -and had reasonably focused his defense on a mis identification theory once his properly focused records search proved unsuccessful. These conclusions are applications of law to fact that are dispositive of the "performance" component of petitioner's Strickland claim; the district court's contrary conclusion on the adequacy of counsel's conduct is not a purely factual finding that is entitled to deference. On the contrary, as Strickland and the cases that apply it make clear, any deference that was owed was owed to trial counsel. See, e.g., Bell v. Cone, 535 U.S. at 698, 702; Strickland, 466 U.S. at 689-691.

c. Certiorari is also unwarranted because, even if petitioner could show that his counsel performed de ficiently, it is unlikely that he could establish a reasonable probability that the result of the trial would have been different. Although it found no need to decide whether petitioner was prejudiced by his counsel's failure to locate the "Larry Chiles" motel record, the court of appeals "express[ed] * * * considerable doubt * * * on whether prejudice could have ensued here." App., infra, 2a n.15. There is good reason for such doubt.

As the court of appeals observed, the testimony of the government's three eyewitnesses implicating petitioner in the Moody murder was "credible," with the testimony of the principal eyewitness deemed to be "particularly compelling," and was "corroborated by physical evidence." App., infra, 2a n.15. By contrast, the testimony of the potential alibi witnesses, including petitioner himself, was found to be "much less credible." Ibid. Indeed, the district court found that Reavis's testimony was "unpersuasive," Pet. App. 52a; that Rowe's testimony appeared to be "a fabrication," id. at 60a; and that petitioner's "self-serving" testimony was not "inherently reliable or trustworthy," id. at 61a, particularly since the idea that petitioner spent the night of Moody's murder in a motel with Reavis "does not sit comfortably alongside [his] proven participation" in other murders of his organization's rivals, id. at 63a. As the court of appeals observed, moreover, petitioner would have been subjected to "cross-examination about the other murders [he committed] and his extensive criminal record." App., infra, 2a-3a n.15. Finally, the alibi defense itself was "a weak one" (Pet. App. 43a), inasmuch as the less-than-credible witnesses, together with a motel receipt in someone else's name, would have placed petitioner "a mere two miles away from the murder scene" (App., infra, 3a n.15). Under these circumstances, it is not likely that petitioner would be able to establish a Sixth Amendment violation even if this Court were to conclude that his counsel's per formance was unreasonable.

d. Nor is there any reason to grant certiorari, vacate the judgment of the court of appeals, and remand the case for further consideration in light of Rompilla v. Beard, 125 S. Ct. 2456 (2005), which was decided after the petition in this case was filed. See Pet. 21-22 (sug gesting that petition be held pending decision in Rompilla). Rompilla "simply applies [this Court's] longstanding case-by-case approach to determining whether an attorney's performance was unconsti tutionally deficient under Strickland." 125 S. Ct. at 2469 (O'Connor, J., concurring). Its narrow holding is that, "even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available," counsel "is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial." Id. at 2460. This case does not involve a failure to "look at a file [that defense counsel] knows the pro secution will cull for aggravating evidence," much less a file that was "sitting in the trial courthouse, open for the asking." Id. at 2467. Instead, the issue in this case is whether counsel performed reasonably when he pursued his investigation of a potential guilt-phase defense to its natural limits and abandoned it only when the investigation failed to unearth the motel record that was the object of the search. The question whether counsel's search for a single record was objectively reasonable under the circumstances is fully informed by Strickland and the many cases that apply it; Rompilla does not alter the analysis.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

<

PAUL D. CLEMENT
Solicitor General

JOHN C. RICHTER
Acting Assistant Attorney
General

ROBERT J. ERICKSON
Attorney

JULY 2005

1 Under 21 U.S.C. 848(c), a person engages in a "continuing criminal enterprise" if he violates any provision of Subchapter I or II of Chapter 13 of Title 21 of the United States Code as part of a "continuing series of violations" of either subchapter that are undertaken in concert with "five or more other persons" with respect to whom the defendant occupies any position of management and from which the defendant obtains substantial income or resources. See Pet. App. 18a (listing elements).

2 Petitioner was also convicted on one count of conspiracy to possess with intent to distribute and to distribute cocaine base, in violation of 21 U.S.C. 846 (Count 1); four counts of using a firearm during and in relation to a crime of violence or drug-trafficking offense, in violation of 18 U.S.C. 924(c) (Counts 6, 9, 12, and 15); five counts of committing a violent crime in aid of racketeering activity, in violation of 18 U.S.C. 1959 (Counts 7, 10, 13, 14, and 16); and one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. 841(a)(1) (Count 32).

3 On the remaining counts, petitioner was sentenced to an aggregate prison term of life plus 65 years.

4 Johnson (No. 04-8850) and Tipton (No. 04-8856) have also filed petitions for a writ of certiorari. The government is responding to those petitions in a separate brief.

5 Tipton was convicted and sentenced to death for the Talley murder, but petitioner was not substantively charged.

6 Reavis was tried with petitioner, Tipton, and Johnson. She is cur rently serving a 16-year sentence on a drug-trafficking conspiracy conviction. See United States v. Reavis, 48 F.3d 763 (4th Cir.), cert. denied, 515 U.S. 1151 (1995).

7 In a separate opinion, the district court rejected petitioner's claims that were unrelated to the Moody murder and denied the Section 2255 motions filed by Tipton and Johnson in their entirety. Pet. App. 64a-190a.

8 The district court rejected petitioner's other ineffective-assistance claim, which was based on his counsel's failure to call Rowe as a witness. Pet. App. 54a. The court found that, to the extent that it exculpated petitioner, Rowe's testimony "was not credible and would carry no weight with a jury." Id. at 53a. The district court also rejected petitioner's claim that he was "actually innocent" of Moody's murder. Id. at 59a-63a. The court concluded that petitioner's "thin alibi, even when coupled with Gina Taylor's testimony, and the evidence sug gesting third parties wished to do Moody harm, [wa]s not sufficiently compelling to preclude many a reasonable juror from finding [peti tioner] guilty of murdering Moody in light of the formidable direct and circumstantial evidence of [petitioner's] guilt." Id. at 62a.

9 Footnote 15, in which the court of appeals elaborates on its "considerable doubt," is omitted from the opinion that is reprinted in the appendix to the petition. Compare Pet. App. 40a with 378 F.3d 382, 409 & n.15 (4th Cir. 2004). The section of the opinion that discusses petitioner's ineffective-assistance claim, including footnote 15, is reproduced in an appendix to this brief.

10 The court of appeals also rejected Johnson and Tipton's claim that the district court erred by failing to give a special unanimity instruction with respect to the identities of the "five or more other persons" that each of them organized, supervised, or otherwise managed during the course of the CCE. Pet. App. 20a-21a. "Not only has this claim been inexcusably defaulted by Johnson and Tipton's failure to raise it either at trial or on direct appeal," the court said, the claim also fails on the merits, because "Richardson did not change the rule 'that the jury need not unanimously agree on which five persons were organized, super vised, or managed by the defendant.'" Ibid. (quoting United States v. Stitt, 250 F.3d 878, 886 (4th Cir. 2001), cert. denied, 535 U.S. 1074 (2002)).

11 See, e.g., United States v. Rivera, 347 F.3d 850, 851-852 (10th Cir. 2003), cert. denied, 540 U.S. 1210 (2004); United States v. Montalvo, 331 F.3d 1052, 1056-1057 (9th Cir. 2003), cert. denied, 541 U.S. 1011 (2004); Ross v. United States, 289 F.3d 677, 681-682 (11th Cir. 2002) (per curiam), cert. denied, 537 U.S. 1113 (2003); Santana-Madera v. United States, 260 F.3d 133, 139 (2d Cir. 2001), cert. denied, 534 U.S. 1083 (2002); Lanier v. United States, 220 F.3d 833, 838-839 (7th Cir.), cert. denied, 531 U.S. 930 (2000); United States v. Brown, 202 F.3d 691, 699 (4th Cir. 2000); United States v. Long, 190 F.3d 471, 476 n.3 (6th Cir.), cert. denied, 528 U.S. 1032 (1999); United States v. Escobar-de Jesus, 187 F.3d 148, 161-162 (1st Cir. 1999), cert. denied, 528 U.S. 1176 (2000).

12 See, e.g., Rivera, 347 F.3d at 852; United States v. Green, 293 F.3d 886, 889-890 (5th Cir.), cert. denied, 537 U.S. 965 and 982 (2002), and 538 U.S. 981 (2003); Santana-Madera, 260 F.3d at 140-141; Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000); Escobar-de Jesus, 187 F.3d at 161-162.

13 See Murr, 200 F.3d at 906 (instructional error is harmless if "jury necessarily made factual findings establishing that [the] violations were related to one another"); Escobar-de Jesus, 187 F.3d at 162 (noting that evidence introduced to prove predicate offenses, including their "proxi mity in time and identity in purpose," also "establishes inescapably their relatedness").

14 Although petitioner lists in his questions presented (Pet. i) the question whether a special unanimity instruction is required with respect to the identities of the "five or more other persons" whom he organized, supervised, or otherwise managed during the CCE, 21 U.S.C. 848(c)(2)(A), petitioner presents no argument in support of this claim, and instead incorporates by reference (Pet. 17 n.2) the arguments made in the petitions filed by co-defendants Johnson and Tipton. Unlike his co-defendants, however, petitioner did not raise this claim in the district court (see Pet. App. 84a-90a), and the district court refused to consider claims that were merely adopted by reference (id. at 189a). Petitioner also did not raise the claim in the court of appeals (see Pet. C.A. Br. 19-96), which addressed the "five or more other persons" unanimity issue only with respect to petitioner's co-defendants (see Pet. App. 20a-21a). For that reason, as well as the reasons set forth in our brief in opposition to the petitions filed by Johnson and Tipton, see 04-8850 & 04-8856 Br. in Opp. 29-33, certiorari on this claim is unwarranted.

Without specification, petitioner also asserts that he "joins in * * * the remaining contentions raised by Tipton and Johnson." Pet. 17 n.2. But "[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court," Sup. Ct. R. 14.1(a), and none of the "remaining contentions raised by Tipton and Johnson" (Pet. 17 n.2) is listed in petitioner's questions presented or fairly included within any question that is. As explained in our brief in opposition to the petitions filed by Johnson and Tipton, moreover, see 04-8850 & 04-8856 Br. in Opp. 14-17, 34-40, there would be no basis for review of these "re maining contentions" (Pet. 17 n.2) even if petitioner had properly pre sented them.

15 See also United States v. Harris, 408 F.3d 186, 189 (5th Cir. 2005) ("Ineffective assistance of counsel is a mixed question of law and fact that this Court reviews de novo."); United States v. Regenos, 405 F.3d 691, 692-693 (8th Cir. 2005) ("When addressing post-conviction ineffective assistance claims brought under § 2255, we review the ineffective assistance issue de novo and the underlying findings of fact for clear error."); Cooper v. United States, 378 F.3d 638, 640 (7th Cir. 2004) ("The district court's denial of a § 2255 motion for ineffective assistance of counsel is reviewed de novo[.]").

APPENDIX

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Nos. 03-13, 03-25, 03-26, and 03-27

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,

v.

JAMES H. ROANE, JR., DEFENDANT-APPELLEE.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

JAMES H. ROANE, JR., DEFENDANT-APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

CORY JOHNSON, DEFENDANT-APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

RICHARD TIPTON, DEFENDANT-APPELLANT.

Argued: May 6, 2004 Decided:

Aug. 9, 2004

* * * * *

IV.

Finally, we turn to the Government's appeal in No. 03-13, challenging the district court's ruling that Roane's counsel, David Baugh, was constitutionally ineffective for failing to properly investigate 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 performance was deficient, and (2) his deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. 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 investigate Roane's potential alibi. As the court explained, Mr. Baugh possessed information suggesting that Roane might be telling the truth about staying at the Howard Johnson hotel the night of Moody's murder-(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 hotel records could generate an alibi for Roane, and Mr. Baugh was therefore obliged to make a reasonable investigation of them. See Strickland, 466 U.S. at 690-91, 104 S. Ct. 2052 (explaining that attorney has duty to make reasonable investigation or to make reasonable decision not to investigate). We part company with the district court, however, on its conclusion 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 keeping 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 situation." 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 "reasonable[ ] under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 523, 123 S. Ct. 2527, 156 L.Ed.2d 471 (2003). And the strategic decision of Roane's lawyer on the extent of his investigation into the alibi defense "must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S. Ct. 2052; 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," Strickland, 466 U.S. at 689, 104 S. Ct. 2052, and we should evaluate Mr. Baugh's performance "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, 106 S. Ct. 2574, 91 L.Ed.2d 305 (1986).

Applying these principles to this situation, Mr. Baugh's performance 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 investigate a defense at all or has performed an investigation so minimal that no strategic reason could be given for the failure to investigate further. See, e.g., United States v. Russell, 221 F.3d 615, 621 (4th Cir. 2000) (finding ineffective representation when lawyer failed to investigate 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 decisions, 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 during this litigation-he conferred with Roane, he investigated the crime scene, he located an eyewitness to the Moody murder who provided 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 measure 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.

 

* * * * *

15 Because Mr. Baugh's performance was not deficient under Strickland, we need not decide whether his performance prejudiced the defense. See Williams v. Kelly, 816 F.2d 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 anyway; Roane's testimony was "tenable" but "not compelling"; Rowe's testimony 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 different." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.