793 F.3d 857
8th Cir.2015Background
- Ronald Weaver was convicted by a jury of conspiracy and possession with intent to distribute crack cocaine; he was sentenced to 300 months concurrent on two counts.
- After the trial, Weaver’s original trial counsel (Primmer) withdrew and sentencing counsel (Dornan) was appointed; two codefendants (Carvell England and Jamale Key) testified at sentencing that Weaver was not involved in the charged conduct.
- Weaver filed a § 2255 motion alleging ineffective assistance of counsel: (1) trial counsel failed to determine whether England and Key were willing to testify at trial and (2) sentencing counsel failed to move for a new trial based on newly discovered/exculpatory testimony from those codefendants.
- The district court denied the ineffective-assistance claims against trial counsel but granted relief on the sentencing-counsel claim, concluding Dornan was ineffective for not filing a second motion for a new trial and vacated Weaver’s conviction.
- The government appealed and Weaver cross-appealed; the Eighth Circuit reviewed the Strickland standard de novo for legal error and for clear error on factual findings.
- The Eighth Circuit reversed the district court’s grant of relief regarding sentencing counsel, reinstating Weaver’s conviction and sentence, and affirmed denial of Weaver’s trial-counsel claims on alternate grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for not securing/confirming willingness of codefendants to testify at trial | Weaver: Primmer failed to determine/compel England and Key to testify; affidavits show they would have testified | Government/Primmer: Primmer investigated, contacted counsel for codefendants, and reasonably relied on their refusals; subpoena/interview outside jury not required | Held: No ineffective assistance — counsel reasonably investigated and relied on codefendants’ attorneys’ representations |
| Whether failure to obtain a written 30-day waiver under 18 U.S.C. § 3161(c)(2) rendered counsel ineffective | Weaver: Oral waiver was invalid; written waiver required and deprived counsel of preparation time that could have secured exculpatory testimony | Government: No prejudice; additional time would not have changed outcome or counsel’s reasonable strategy | Held: Even assuming error, no prejudice shown under Strickland |
| Whether sentencing counsel was ineffective for not filing a Rule 33 motion for new trial based on England’s and Key’s exculpatory testimony | Weaver: England and Key’s post-trial willingness to testify constituted newly discovered evidence warranting a new trial; Dornan should have moved | Government/Dornan: Their testimony was newly available but not newly discovered; defendant knew or should have known of their potential testimony and counsel reasonably declined | Held: Dornan was not ineffective; belated exculpatory testimony by codefendants is not "newly discovered" and motion would not have been warranted |
| Whether district court properly vacated conviction based on sentencing-counsel ineffective-assistance finding | Weaver: Relief appropriate because district court would have granted a new trial | Government: District court erred in its factual and legal conclusions about newly discovered evidence | Held: Reversed district court; conviction and sentence reinstated |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing the two-prong ineffective assistance standard)
- Campbell v. United States, 410 F.3d 456 (describing procedure to determine invocation of Fifth Amendment outside jury)
- Theus v. United States, 611 F.3d 441 (appellate standard for reviewing ineffective-assistance claims)
- Bell v. United States, 761 F.3d 900 (post-trial affidavits not newly discovered if factual basis existed pre-trial)
- Lofton v. United States, 333 F.3d 874 (co-defendant’s later offer to testify is not newly discovered)
- Owen v. United States, 500 F.3d 83 (defendant who knew co-defendant could testify cannot claim evidence was newly discovered)
- Moore v. United States, 221 F.3d 1056 (later testimony of non-testifying co-defendant is not newly discovered)
- Lindhorst v. United States, 658 F.2d 598 (§ 2255 relief based on newly discovered evidence uses Rule 33 test)
- Rogers v. United States, 982 F.2d 1241 (courts may reject belated exculpatory testimony from codefendants)