United States v. Mitchell, Dennis L.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 3, 2000 Decided June 30, 2000

No. 99-3035

United States of America,

Appellee

v.

Dennis L. Mitchell,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 92cr00213-02)

Jonathan Zucker, appointed by the court, argued the cause

and filed briefs for appellant.

Dennis L. Mitchell, appearing pro se, was on the briefs for

appellant.

Roy W. McLeese, III, Assistant U.S. Attorney, argued the

cause for appellee. Wilma A. Lewis, U.S. Attorney, John R.

Fisher and Sharon A. Sprague, Assistant United States

Attorneys were on the brief. Mary-Patrice Brown, Assistant

U.S. Attorney, entered an appearance.

Before: Williams, Sentelle and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Appellant Dennis L. Mitchell

appeals from an order of the district court denying his motion

for post-conviction relief under 28 U.S.C. s 2255. After

deciding some previously unsettled procedural issues concern-

ing certificates of appealability ("COA") necessary to appeal

the denial of s 2255 motions, we grant a COA as to appel-

lant's claim for per se ineffective assistance of counsel. We

deny his claim on the merits and affirm the order of the

district court.

I. Background

In 1993, Mitchell and a co-defendant were convicted of

conspiracy to distribute and possess with intent to distribute

cocaine and cocaine base in violation of 21 U.S.C. ss 846,

841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(iii). Mitchell was sen-

tenced to 324 months of incarceration. We affirmed the

convictions, but vacated Mitchell's sentence for consideration

of a downward adjustment for his role in the offense. See

United States v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995). On

remand, the district court resentenced Mitchell to 151

months, and we affirmed in an unpublished order. See

United States v. Mitchell, 107 F.3d 923 (D.C. Cir. 1997)

(table).

On December 1, 1997, Mitchell filed a pro se motion for

habeas corpus in the district court under 28 U.S.C. s 2255.

He asserted two claims of ineffective assistance of counsel:

(1) ineffective assistance because his attorney at trial, Profes-

sor James Robertson, did not locate and interview a Ms.

Sonya Allen as a potential witness for trial who could have

corroborated his defense, and (2) per se ineffective assistance

of counsel because Robertson was suspended from the prac-

tice of the law in the District of Columbia during the repre-

sentation period.1

The district court denied the motion. Mitchell filed a

notice of appeal without first seeking a certificate of appeala-

bility as required by 28 U.S.C. s 2253(c)(1) (Supp. IV 1998).

We appointed counsel for Mitchell, and directed the parties,

while not otherwise limited, to address the following ques-

tions: (1) whether a COA may be issued by this court in the

first instance or instead must initially be sought from the

district court; and (2) whether appellant has "made a sub-

stantial showing of the denial of a constitutional right" re-

quired for the grant of a COA.

II. Certificate of Appealability

A. Who Decides

The requirement that a defendant seek a COA to appeal

the denial of a s 2255 petition stems from 28 U.S.C.

s 2253(c)(1), which states in relevant part:

Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of

appeals from ... the final order in a proceeding under

section 2255.

Rule 22(b) of the Federal Rules of Appellate Procedure

prescribes the procedure for seeking a COA:

(1) In a ... 28 U.S.C. s 2255 proceeding, the applicant

cannot take an appeal unless a circuit justice or a circuit

or district judge issues a certificate of appealability un-

der 28 U.S.C. s 2253(c). If an applicant files a notice of

appeal, the district judge who rendered the judgment

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1 Mitchell also claims that his equal protection rights were violat-

ed because federal statutes punish crack cocaine crime more severe-

ly than cocaine powder crimes. This same argument was squarely

rejected in United States v. Johnson, 40 F.3d 436 (D.C. Cir. 1994),

and in Mitchell's direct appeal. See Mitchell, 49 F.3d at 781 n.5.

Mitchell's citation of events which occurred after the governing

statutes were enacted adds nothing.

must either issue a certificate of appealability or state

why a certificate should not issue. The district clerk

must send the certificate or statement to the court of

appeals with the notice of appeal and the file of the

district-court proceedings. If the district judge has de-

nied the certificate, the applicant may request a circuit

judge to issue the certificate.

(2) A request addressed to the court of appeals may be

considered by a circuit judge or judges, as the court

prescribes. If no express request for a certificate is

filed, the notice of appeal constitutes a request addressed

to the judges of the court of appeals.

As a threshold matter, 28 U.S.C. s 2253(c)(1) does not

clearly state that district court judges are empowered to issue

COAs--it simply says "circuit justice or judge." However,

Rule 22(b) contemplates that "judge" means district judge,

and all the circuits addressing the issue have held that

district court judges have the power to issue COAs. We join

these circuits. See Hunter v. United States, 101 F.3d 1565,

1573-83 (11th Cir. 1996) (en banc) (containing a detailed

discussion of the issue), overruled in part on other grounds

by Lindh v. Murphy, 521 U.S. 320 (1997); see also Grant-

Chase v. Commissioner, New Hampshire Dep't of Correc-

tions, 145 F.3d 431, 435 (1st Cir.), cert. denied, 525 U.S. 941

(1998); Lozada v. United States, 107 F.3d 1011, 1015-17 (2d

Cir. 1997), overruled on other grounds by United States v.

Perez, 129 F.3d 255 (2d Cir. 1997); United States v. Eyer, 113

F.3d 470, 472-74 (3d Cir. 1997); Else v. Johnson, 104 F.3d 82,

82-83 (5th Cir. 1997); Lyons v. Ohio Adult Parole Auth., 105

F.3d 1063, 1073 (6th Cir. 1997), overruled in part on other

grounds by Lindh v. Murphy, 521 U.S. 320 (1997); Tiedeman

v. Benson, 122 F.3d 518, 522 (8th Cir. 1997); United States v.

Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997); United States

v. Riddick, 104 F.3d 1239, 1240-41 (10th Cir. 1997), overruled

on other grounds by United States v. Kunzman, 125 F.3d

1363 (10th Cir. 1997).

The parties are in accord that the language of Rule 22(b)

contemplates that the district court should rule in the first

instance on whether a COA should be issued, as other courts

have held. See, e.g., Lozada, 107 F.3d at 1016-17; Kincade v.

Sparkman, 117 F.3d 949, 953 (6th Cir. 1997). We agree.

The language of the Rule prescribes that upon the filing of

the notice of appeal, the district court "must" decide the COA

issue and the district court clerk "must" provide appropriate

documentation to the court of appeals. The Rule continues

on to state that upon denial by the district court, a request

may be made of a circuit judge. We therefore hold that Rule

22(b) requires initial application in the district court for a

COA before the court of appeals acts on a COA request.

Rule 22(b)(2) provides that when an appellant fails to file an

express request for a COA with the court of appeals, the

notice of appeal constitutes such a request to the judges of

the court of appeals. Normally, we will examine such re-

quests after the district court has ruled, see Edwards v.

United States, 114 F.3d 1083, 1084 (11th Cir. 1997), and we

will generally transfer COA requests to the district court

when the district court has not ruled. However, any defect in

procedure occasioned by the appellant's failure to make appli-

cation in this case is not jurisdictional, given the language of

28 U.S.C. s 2253(c)(1), and Rule 22(b)(2). Therefore, in view

of the late stage in the proceedings at which we came to

confront the question, we will proceed to consider whether to

grant the COA ourselves. Insofar as the failure of the

appellant to make application to the district court creates any

obstacle, we note that under Federal Rule of Appellate Proce-

dure 2, we have the authority to "suspend any provision of"

the Rules of Appellate Procedure, including Rule 22(b)(1)

except in limited instances not here relevant. We therefore

exercise that authority and proceed.

B. Merits of COA Request

To determine whether Mitchell should receive a COA to

pursue his appeal, we ask whether he "has made a substantial

showing of the denial of a constitutional right." 28 U.S.C.

s 2253(c)(2). "[T]he petitioner need not show that he should

prevail on the merits.... Rather, he must demonstrate that

the issues are debatable among jurists of reason; that a court

could resolve the issues [in a different manner]; or that the

questions are adequate to deserve encouragement to proceed

further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)

(internal quotation marks omitted); see also Byrd v.

Henderson, 119 F.3d 34, 36 n.3 (D.C. Cir. 1997) (holding that

Barefoot standard applies to COA requests). Under this

standard, we grant Mitchell's COA request on his claim of per

se ineffective assistance of counsel.

Normally, to make a successful ineffective assistance of

counsel claim under the Sixth Amendment, a defendant must

show "(1) that counsel's performance was deficient, falling

'below an objective standard of reasonableness,' and (2) that

the deficient performance prejudiced the defendant, depriving

him of a fair trial." United States v. Bruce, 89 F.3d 886, 893

(D.C. Cir. 1996) (quoting Strickland v. Washington, 466 U.S.

668, 688 (1984)). Mitchell formulates two theories of ineffec-

tiveness. The first is that Robertson's trial performance was

deficient because he failed to produce Sonya Allen as a

witness who would have, he claims, corroborated his defense.

Certainly, as we observed in United States v. Debango, 780

F.2d 81 (D.C. Cir. 1986), "[t]he complete failure to investigate

potentially corroborating witnesses ... can hardly be consid-

ered a tactical decision." Id. at 85. But, as we further

recalled in Debango, "[e]ven if counsel's performance fell

below prevailing professional norms ... Strickland requires

that a defendant establish prejudice." Id. The prejudice

that Mitchell claims arose from the absence of Allen's testi-

mony, however, was plainly insufficient to satisfy the second

prong of the Strickland test.2 To bypass this hurdle, Mitchell

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2 Allen would have testified that Mitchell was not present when

Calvin Stevens, one of Mitchell's co-conspirators, retrieved a bag

from the attic of the house he shared with Allen and removed a

bundle of money from it. Mitchell argues that because this evi-

dence partially contradicts Stevens's trial testimony and partially

corroborates the contradictory testimony of another co-conspirator,

Paul Campbell, it would have cast doubt on his knowledge of illegal

activity and participation in the conspiracy. But as the district

court pointed out Ms. Allen's testimony was cumulative, and other

invokes the rule that prejudice can be presumed "if a defen-

dant can show that 'a conflict of interest actually affected the

adequacy of [the attorney's] representation....' " Bruce, 89

F.3d at 893 (quoting Cuyler v. Sullivan, 446 U.S. 335, 349

(1980)). Claiming that Robertson was suspended from the

practice of law in the District of Columbia during Mitchell's

trial, appellant argues that Robertson had a conflict of inter-

est because he was preoccupied with his own disciplinary

proceedings and fear of sanctions and wanted to keep his

status concealed, so he did not expend extra funds reimbursa-

ble under the Criminal Justice Act as appointed counsel to

seek out Ms. Allen.

The district court did not resolve the issue of Robertson's

bar status. The court noted that Robertson was in fact

admitted to practice before the district court during the

relevant period, but accepted the proposition that this admis-

sion may have been under questionable circumstances. The

district court thus assumed for the sake of argument that

Robertson was suspended. In any event, the suspension was

not in any way related to Robertson's conduct in representing

Mitchell.

Even if we also assume that Robertson was suspended,

Mitchell's conflict of interest scenario is simply too hypotheti-

cal to gain him relief. There is no evidence that Robertson

would have needed extraordinary funds to find Allen or that

such expenditures would somehow trigger a review of his bar

qualifications. We have been careful to guard against "defen-

dants' attempts to force their ineffective assistance claims

into the 'actual conflict of interest' framework ... and there-

by supplant the strict Strickland standard with the far more

lenient Cuyler test." Bruce, 89 F.3d at 893; see also United

States v. Taylor, 139 F.3d 924, 930-32 (D.C. Cir. 1998).

Mitchell's conflict theory is such an attempt. See United

States v. Maria-Martinez, 143 F.3d 914, 916-17 (5th Cir.

1998) ("[A]n undisclosed lack of credentials ... provide[s] an

incentive for lackluster representation, the theory goes, be-

__________

evidence in the form of a taped conversation between two of the co-

conspirators casts serious doubt on Mitchell's theory.

cause the attorney will be concerned about drawing attention

to himself and encouraging an inquiry into his background."),

cert. denied, 525 U.S. 1107 (1999). We could as easily say

that far from having a conflict of interest, Robertson had "an

incentive to do his best" to avoid a later ineffective assistance

claim and the exposure of his status. United States v.

Leggett, 81 F.3d 220, 226-27 (D.C. Cir. 1996); see also Vance

v. Lehman, 64 F.3d 119, 126 (3d Cir. 1995). We conclude that

Mitchell's ineffectiveness claim on these grounds does not rise

to the level of a substantial showing of the denial of a

constitutional right.

Mitchell's second argument in support of his ineffective

assistance of counsel claim has slightly more promise. Based

on a different line of precedent, he contends that Robertson's

suspension calls for a finding of per se ineffectiveness. In

Harrison v. United States, 387 F.2d 203 (D.C. Cir. 1967),

rev'd on other grounds, 392 U.S. 219 (1968), where an ex-

convict posed as an attorney, we held that the requirements

of the Sixth Amendment "are not satisfied when the accused

is 'represented' by a layman masquerading as a qualified

attorney." Id. at 212. Mitchell candidly admits that other

courts have rejected a per se ineffectiveness rule for attor-

neys who have been licensed to practice law and later subject-

ed to discipline such as suspension, but claims that Harrison

could support such a rule in an issue of "first impression" in

this circuit. In his view, a generous reading could extend

Harrison and hold that a suspended attorney is not a "quali-

fied attorney" because he is not currently "admitted to the

practice of the law, no matter how intelligent or well educated

he may be." Id.

It appears that most courts facing the issue have held that

suspension or disbarment alone is not enough to make an

attorney per se ineffective. See, e.g., Reese v. Peters, 926

F.2d 668, 670 (7th Cir. 1991); Waterhouse v. Rodriguez, 848

F.2d 375, 383 (2d Cir. 1988); United States v. Mouzin, 785

F.2d 682, 696-97 (9th Cir. 1986); United States v. Myles, 10

F. Supp. 2d 31, 36 (D.D.C. 1998); see generally Jay M. Zitter,

Annotation, Criminal Defendant's Representation by Person

Not Licensed to Practice Law as Violation of Right to

Counsel, 19 A.L.R. 5th 351 (1994). However, a few jurists

appear to have thought otherwise. See In re Johnson, 822

P.2d 1317, 1323-24 (Cal. 1992) (applying California Constitu-

tion); Ohio v. Newcombe, 577 N.E.2d 125, 126 (Ohio Ct. App.

1989); Mouzin, 785 F.2d at 703-04 (Ferguson, J., dissenting).

To more clearly define the contours of the issue in this circuit,

we grant a COA on Harrison's claim of per se ineffective

assistance of counsel.

III. Per Se Rule

We decline appellant's invitation to extend the per se

ineffectiveness rule beyond cases in which a defendant is

represented by a person never properly admitted to any bar.

See, e.g., Solina v. United States, 709 F.2d 160, 168-69 (2d

Cir. 1983); United States v. Novak, 903 F.2d 883, 886-90 (2d

Cir. 1990). In fact, we earlier intimated such a limitation in

United States v. Butler, 504 F.2d 220 (D.C. Cir. 1974).

There, appellant's trial counsel had not been admitted to the

local bar, and we stated that "[s]tanding alone, the mere fact

of a trial attorney's nonmembership in the local bar is not

necessarily sufficient to find that the right to effective counsel

was breached." Id. at 223. Instead, we found counsel inef-

fective in Butler only because in addition to the lack of bar

membership, there were numerous instances of attorney er-

ror at trial. See id. at 224.

We hold that the fact of suspension does not, by itself,

render counsel ineffective under the Sixth Amendment. In-

stead, the normal Strickland rule applies and a defendant

must meet his burden of showing deficient performance at

trial which resulted in prejudice. See Mouzin, 785 F.2d at

696-97. As the Ninth Circuit said in Mouzin:

Neither suspension nor disbarment invites a per se rule

that continued representation in an ongoing trial is con-

stitutionally ineffective. Admission to the bar allows us

to assume that counsel has the training, knowledge, and

ability to represent a client who has chosen him. Contin-

ued licensure normally gives a reliable signal to the

public that the licensee is what he purports to a be--an

attorney qualified to advise and represent a client.

Id. at 698.

As time passes, some admitted members of the bar incur

sanctions of suspension or disbarment which leave them no

longer entitled to lawfully practice the profession. As the

Ninth Circuit noted, sometimes this "discipline flows from

revealed incompetence or untrustworthiness or turpitude

such as to deserve no client's confidence." Id. Sometimes,

however, the grounds of suspension are sufficiently unrelated

to the previously prevailing presumption of competence that

no inference can be drawn of ineffectiveness in representa-

tion. Therefore, there is no logical reason to extend the per

se ineffectiveness rule beyond those instances already covered

in the Harrison presumption--when a defendant is repre-

sented by a person never properly admitted to the practice of

law. Therefore, our examination in a case such as this

involving a suspended attorney is governed by Strickland v.

Washington, and requires the showing of incompetence and

prejudice that Mitchell has not made.3

Other circuits addressing the issue have reached similar

results. Instead of extending a per se rule to cover various

states of attorney licensure, courts have considered the facts

of the cases to determine if counsel was ineffective. See

Waterhouse, 848 F.2d at 383; Vance, 64 F.3d at 122-26;

Roach v. Martin, 757 F.2d 1463, 1479-80 (4th Cir. 1985);

Maria-Martinez, 143 F.3d at 916-19; Reese, 926 F.2d at 669-

70; United States v. Hoffman, 733 F.2d 596, 599-601 (9th Cir.

1984); United States v. Stevens, 978 F.2d 565, 568-69 (10th

Cir. 1992). Therefore, although appellant's per se ineffective

assistance claim survives the hurdle of the certificate of

appealability, it merits no relief.

__________

3 A detailed discussion of the facts surrounding Professor Robert-

son's disciplinary difficulties is recounted in United States v. Myles,

10 F. Supp. 2d 31 (D.D.C. 1998).

IV. Conclusion

In summary, we hold that the district court has the power

to issue certificates of appealability and is required to consid-

er and make a decision on the COA issue before the court of

appeals will address it. We further hold that although appel-

lant was entitled to a COA on his claim of per se ineffective

assistance of counsel, his claim fails on the merits. To the

extent we exercise jurisdiction to review the order of the

district court, it is

Affirmed.