U.S. v. Davis

• Decision Date: 05 May 2005
• Docket Number: No. 04-1362.,04-1362.
• Citation: 406 F.3d 505
• Parties: UNITED STATES of America, Appellee, v. Cleophus DAVIS, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

406 F.3d 505

UNITED STATES of America, Appellee, v. Cleophus DAVIS, Jr., Appellant.

No. 04-1362.

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2004.

Filed: May 5, 2005.

David R. Stickman, argued, Federal Public Defender, of Omaha, Nebraska (Jennifer L. Gilg, on the brief), for appellant.

Russell X. Mayer, argued, Assistant U.S. Attorney, of Omaha, Nebraska (Michael G. Heavican, on the brief), for appellee.

Before MURPHY, HANSEN, and MELLOY, Circuit Judges.

HANSEN, Circuit Judge.

Cleophus Davis, Jr. appeals from the district court's¹ denial of his 28 U.S.C § 2255 motion, in which he sought to vacate his robbery and firearm convictions based on alleged violations of his Fifth and Sixth Amendment rights. We affirm.

I.

The facts underlying Davis's convictions are detailed in his direct appeal, in which we affirmed his convictions. See United States v. Davis, 103 F.3d 660 (8th Cir. 1996), cert. denied, 520 U.S. 1258, 117 S.Ct. 2424, 138 L.Ed.2d 187 (1997). We repeat the facts here to the extent they are relevant to Davis's § 2255 claims. Davis was convicted by a jury of three counts of armed bank robbery, 18 U.S.C. § 2113(a) and (d), and three counts of using a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1). Some eyewitness testimony was offered at trial, and the prosecutor used a ballistics expert to link Davis to two of the three robberies.

Investigators recovered bullets from two of the robbery locations, and the prosecutor used that evidence, in part, to identify Davis as the robber by tying the two bullets to bullets later found in Davis's car and in a parking lot near his home. The prosecution's expert, John Riley, worked for the FBI Laboratory Division in its Elemental and Metals Analysis Unit, and had extensive experience analyzing the elemental composition of various materials, including the lead used in manufacturing bullets. Prior to trial, Riley performed a forensic analysis on the two bullets found at the scenes of the robberies as well as one spent bullet found in a parking lot near Davis's apartment and ten bullets recovered from a partial box of ammunition found in Davis's car. Riley testified that he measured the trace elements in each of the bullets using Inductively Coupled Plasma-Atomic Emission Spectrometry ("ICP") in an attempt to match particular bullets to each other. Based on the similarity among six trace elements found in the bullets tested, Riley opined that the bullets were "analytically indistinguishable," and that "the three expended bullets either came from this partial box of cartridges, made by Remington, or from another box of cartridges that was manufactured by Remington on the same day that this box was."

Prior to trial, Davis's attorney moved to exclude Riley's testimony on foundational grounds. The district court rejected Davis's motion to exclude the testimony, and during trial, Davis's attorney extensively cross-examined Riley about his methodology and his findings. Toward the end of trial, Davis's attorney hired an analytical chemist, Dr. David Dobberpuhl, as an expert to refute Riley's testimony. During his testimony, Dr. Dobberpuhl criticized Riley's use of the ICP analysis to support his opinion and challenged Riley's methodology and conclusions.

As noted, the government also offered some eyewitness testimony at trial, which the magistrate judge characterized as weak. Because the robber wore a mask, no one at the scene of any of the robberies got a clear view of the robber. One teller was unable to pick Davis out of a lineup, though she narrowed it down to two people in the lineup, one of whom was Davis. She then made a positive voice identification of Davis after hearing the men in the lineup repeat statements similar to what the robber had said to her during the robbery. A motorist, who noticed a man jogging away from the vicinity of one of the robberies shortly after it occurred, later identified Davis in a lineup and testified at trial that there was an 80-90% probability that Davis was the man he saw leaving the vicinity of the robbery.

After the district court denied Davis's motion for acquittal, a jury convicted Davis on all counts, and we affirmed the conviction on direct appeal. Davis then filed a § 2255 motion raising four issues: (1) ineffective assistance of trial counsel for failing to investigate or hire an appropriate expert witness to rebut the government's expert; (2) ineffective assistance of trial counsel for failing to interview any witnesses prior to trial; (3) ineffective assistance of appellate counsel for failing to raise the ineffective assistance of trial counsel issue on direct appeal; and (4) violation of the Fifth Amendment's Indictment Clause. The district court rejected the claims alleging ineffective assistance of appellate counsel and Indictment Clause violations, but held an evidentiary hearing on the two claims related to the alleged ineffective assistance of trial counsel.

Davis presented testimony at the § 2255 hearing challenging the testimony and conclusions of the prosecution's metals expert. He also presented evidence that his trial attorney had not interviewed the two eyewitnesses prior to trial, nor had he contacted the officers who conducted the lineups concerning the eye witnesses' level of certainty at the time of the lineups. Having considered the additional testimony, the magistrate judge recounted trial counsel's cross-examination of Agent Riley at trial, as well as Dr. Dobberpuhl's testimony that refuted some of Agent Riley's opinions. The magistrate judge concluded that "defense counsel forcefully challenged Agent Riley's conclusions ... [and did not] blunder by retaining an analytical chemist rather than a metallurgist." (Report and Recommendation at 19-20.) The magistrate judge also concluded that the results of the trial would not have been different if Davis's trial attorney had hired a different expert. (Id. at 20.) The magistrate judge further noted that the concerns raised about the FBI's bullet analysis by the § 2255 expert, who discredited the methodology used by the FBI, were not widely disseminated within the scientific community in 1995 at the time of Davis's trial. The magistrate judge recommended to the district court that Davis's § 2255 motion be denied.

The district court agreed with the magistrate judge's thorough analysis, adopted the Report and Recommendation, and denied Davis's § 2255 motion. The district court granted Davis a certificate of appealability on all four issues raised in the § 2255 motion.

II.

We review the legal issues raised by the district court's denial of Davis's § 2255 motion de novo, but any underlying fact-findings are reviewed for clear error. See Covey v. United States, 377 F.3d 903, 906 (8th Cir.2004). Ineffective assistance of counsel claims raise mixed questions of law and fact, and we accordingly review those claims de novo. Id.

A. Ineffective Assistance of Trial Counsel

To prevail on an ineffective assistance of counsel claim, Davis must satisfy the familiar Strickland standard by establishing both that his counsel's performance "fell below an objective standard of reasonableness," and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 688, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Robinson, 301 F.3d 923, 925 (8th Cir.2002), cert. denied, 537 U.S. 1238, 123 S.Ct. 1367, 155 L.Ed.2d 207 (2003). "In determining whether counsel's conduct was objectively reasonable, there is a `strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Nguyen v. United States, 114 F.3d 699, 704 (8th Cir.1997) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). To satisfy the prejudice prong of the Strickland analysis, Davis must establish 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, 104 S.Ct. 2052.

Davis raises two instances of allegedly ineffective assistance of trial counsel: his counsel's handling of the government's expert witness including his failure to obtain a competent rebuttal expert, and his counsel's failure to interview witnesses prior to trial. Following a hearing on both of these issues, the district court adopted the magistrate judge's Report and Recommendation, finding that Davis's counsel was not deficient on the expert witness issue, and that even if his counsel's failure to interview witnesses equated to deficient performance, such deficiency did not prejudice Davis's defense.

1. Expert Evidence

At the § 2255 hearing, Davis offered the testimony of Dr. Erik Randich, a metallurgist, who challenged the FBI's alleged ability to conclusively identify bullets as coming from a specific box of bullets based on the bullets' composition. The magistrate judge determined that the information relied upon by Dr. Randich to challenge the FBI's use of ICP to support its bullet-identification theory was not readily available in 1995, at the time of Davis's trial. Davis has failed to establish that this factual finding was clearly erroneous. Dr. Randich did not begin his own study challenging the FBI's ballistics analysis until 1998, three years after Davis's trial. Dr. Randich admitted that he was unaware of any study or report in 1995 that was critical of the FBI's methodology. Davis's trial counsel cannot be said to be ineffective for failing to challenge the FBI's methodology on a basis that was not advanced by the scientific community at the time of trial. Cf. Dees v. Caspiri, 904 F.2d 452, 455 (8th Cir.) ("At most counsel might be deficient for failing to discover and make use of a widely held scientific view." (emphasis added)), cert. denied, 498 U.S. 970, 111 S.Ct. 436, 112 L.Ed.2d 419 (1990).

Davis alleges that his trial counsel's investigation of the case was...