James Allen Gregg v. United States, 683 F.3d 941

Gregg was convicted in 2005 of second‑degree murder and use of a firearm during a crime of violence; he filed a §2255 petition alleging ineffective assistance of counsel for not offering specific acts of the victim’s violence to prove his state of mind.
Trial counsel believed Rule 404(b) could not prove the victim was the aggressor, and Gregg’s offer of proof stated only that Fallís was “tough.”
On direct appeal, the Eighth Circuit affirmed the district court’s exclusion of specific acts to prove state of mind, requiring knowledge of such acts at the time of the offense.
A magistrate judge recommended a new trial based on two Fallís incidents (boat dock in 1999; a bar incident around 2005) that Gregg’s father relayed; the district court denied relief, finding no prejudice and that the evidence would be excluded under Rule 403.
On rehearing, the Eighth Circuit affirmed the denial of relief, holding Gregg failed to show a reasonable probability that the outcome would have been different even if the 404(b) evidence had been admitted; the evidence was cumulative or would have been excluded under Rule 403.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel’s failure to admit 404(b) evidence prejudiced Gregg.	Gregg argues the two incidents would have supported his state‑of‑mind defense.	The government contends the evidence would not have changed the outcome and could be excluded under Rule 403/404(b).	No prejudice; outcome unlikely to change.
Whether the 404(b) evidence would have been admissible and would have affected the verdict.	Evidence was probative of Gregg’s state of mind and should have been admitted.	Evidence was remote or prejudicial and would have been excluded under Rule 403; not likely to alter result.	Evidence would likely have been excluded; no reasonable probability of a different result.

Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance requires prejudice and deficient performance)
United States v. Milk, 447 F.3d 593 (8th Cir. 2006) (Rule 404(b) and Rule 403 balancing; state‑of‑mind evidence can be admissible; district court’s discretion limited)
United States v. Chase, 451 F.3d 474 (8th Cir. 2006) (admissibility of 404(b) state‑of‑mind evidence; probative value vs. prejudice)
United States v. Waloke, 962 F.2d 824 (8th Cir. 1992) (judicial discretion on evidentiary rulings; prejudice concerns)
United States v. James, 169 F.3d 1210 (9th Cir. 1999) (importance of credibility and state‑of‑mind evidence in self‑defense)