U.S. v. Terry

• Decision Date: 26 April 2004
• Docket Number: No. 02-7918.,02-7918.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ralph Leon TERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

366 F.3d 312

UNITED STATES of America, Plaintiff-Appellee, v. Ralph Leon TERRY, Defendant-Appellant.

No. 02-7918.

United States Court of Appeals, Fourth Circuit.

Argued: February 24, 2004.

Decided: April 26, 2004.

ARGUED: John Bottini, Third Year Law Student, Appellate Litigation Clinic, University of Virginia School of Law, Charlottesville, VA, for Appellant. Stacey Denise Haynes, Assistant United States Attorney, Columbia, S.C., for Appellee. ON BRIEF: Neal Lawrence Walters, Charlottesville, VA, for Appellant. J. Strom Thurmond, Jr., United States Attorney, Columbia, S.C., for Appellee.

Before LUTTIG, KING, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge KING and Judge GREGORY joined.

LUTTIG, Circuit Judge:

Appellant, Ralph Terry, was convicted by a jury of two federal counts relating to cocaine distribution. His sentence was based, in part, on the testimony of his co-conspirator, Eric Jensen, concerning Terry's involvement with him in a prior drug deal involving a large quantity of marijuana, conduct that was not specified in Terry's indictment. Subsequently, Terry filed a motion pursuant to 28 U.S.C. § 2255 raising, inter alia, claims of ineffective assistance of counsel. The claims were based on the asserted deficient performance of Terry's trial counsel in several respects, each deficiency of which allegedly resulted in the omission of testimony that had a reasonable probability of discrediting Jensen's testimony about the marijuana transaction, which in turn could have significantly reduced the sentence Terry received. Terry sought to appeal the district court's denial of his motion to this court, and Judge Gregory granted a certificate of appealability as to the ineffective assistance claims. Having fully considered these claims on their merits, we now affirm.

I.

In December of 1998, a federal grand jury charged Terry with one count of conspiring with Eric Jensen to possess with intent to distribute cocaine, and one count of possession with intent to distribute and distribution of a quantity of cocaine. At trial, the government called five witnesses: Jensen (who pled guilty prior to trial), Richard Williamson, Terry Davis, and two agents of the South Carolina Law Enforcement Department ("SLED"). The bulk of the government's evidence went to facts surrounding a cocaine transaction that occurred on November 7, 1998, after Herbert ("The Breeze") Timmons, a confidential informant, advised SLED agents of an imminent drug deal near Columbia, South Carolina. Timmons was a friend of Williamson, who knew Jensen. Williamson had told Timmons the previous day that Jensen had powder cocaine for sale, and offered to assist Timmons in an undercover drug operation. Williamson made plans to bring Jensen up from Florida so that Jensen could sell the cocaine to Timmons.

Williamson had identified "Ralph" as Jensen's source for the cocaine. "Ralph" planned to drive to Columbia to deliver the cocaine to Jensen, which Jensen would then sell to Timmons. On the morning of the day in question, Jensen met Ralph Terry at his girlfriend's house. There, Terry helped Jensen "cut" four ounces of cocaine into seven, and then gave Jensen the powder, with the intention of being repaid after its sale. Later that day, Timmons met Williamson and Terry to discuss a deal. At that meeting, Jensen agreed to sell Timmons four ounces of cocaine, and Jensen was arrested. Jensen quickly agreed to cooperate and identified Terry as his drug source. The agents had Jensen make a recorded call to Terry, in which Jensen told Terry he had part of his money and could pick it up at the hotel. Terry came to the hotel, and was arrested shortly after he arrived there.

In establishing the extent of the relationship between Jensen and Terry, the government also presented evidence of their prior conduct together. Jensen testified that he met Terry while they were both in prison. After their release, Terry pressured Jensen to start dealing drugs again, and Jensen eventually agreed. The two engaged in an initial transaction involving fifteen or twenty pounds of marijuana, which Terry supplied to Jensen. Subsequently, a larger transaction occurred in which Terry delivered a car with marijuana in its trunk to Jensen, which Jensen was to take to one Rodney Mayo. When he brought the car to Mayo and the trunk was opened, Jensen discovered approximately 100 pounds of marijuana inside. Jensen gave the drugs to Mayo and returned the car to Terry.

As to the case in defense, Terry's appointed trial counsel presented Terry's girlfriend, as an alibi witness whose testimony cast doubt on Jensen's description of his activities with Terry that morning. Additionally, trial counsel cross-examined each of the prosecution's witnesses, often at some length. Nevertheless, the jury convicted Terry of both counts.

A presentence report was submitted to the court. The report recommended inclusion of the 100 pounds of marijuana that Jensen delivered for Terry, as relevant conduct for determining Terry's sentence. The district court adopted the report's findings and sentenced Terry to 97 month sentences on each count, with the sentences set to run concurrently. On direct appeal, this court affirmed Terry's convictions. United States v. Terry, 14 Fed.Appx. 253 (4th Cir.2001) (unpublished).

Subsequently, Terry filed a pro se motion under 28 U.S.C. § 2255, in which he asserted several claims. Without holding an evidentiary hearing, the district court denied relief on all claims, denied Terry's subsequent motion for reconsideration only as to his ineffective assistance of counsel claims, and denied a certificate of appealability. Terry timely sought appeal to this circuit, however, and Judge Gregory granted a certificate "on the issues of whether counsel was ineffective for advising Terry not to testify and for failing to call witnesses who Mr. Terry alleged were prepared to testify." We appointed Terry appellate counsel, directed additional briefing, and heard argument.

II.

In order to establish a claim for ineffective assistance of counsel, Terry must show, first, that his trial counsel's performance was deficient and, second, that the deficiency prejudiced Terry's defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland's "performance" prong, Terry must demonstrate that trial counsel's performance fell below an objective standard of reasonableness determined by comparison to "prevailing professional norms." Id. at 688, 104 S.Ct. 2052. In addition, Terry must also show under Strickland's "prejudice" prong that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. If Terry conclusively fails to demonstrate sufficient prejudice from certain acts or omissions, we need not decide whether counsel's performance in those regards was, in fact, deficient under Strickland. See id.

Terry claims that his trial counsel provided ineffective assistance of counsel in three ways, two of which are based on trial counsel's advice to Terry not to testify, and the other of which stems from trial counsel's failure to call as witnesses three inmates whom Terry alleges were prepared to testify. Moreover, even if the court cannot accept those claims on the record as it now stands, Terry asserts that the case must be remanded for an evidentiary hearing as he contends section 2255 requires. We conclude, however, that even if Terry's evidence was believed, it would not establish ineffective assistance. Thus an evidentiary hearing is unnecessary and, accordingly, we affirm the district court's rejection of Terry's claims on the record evidence.

III.

While Terry makes three general claims of ineffective assistance, the locus of the first two lies in Terry's not testifying due to trial counsel's performance. First, Terry claims that trial counsel's decision to advise him not to testify on his own behalf (which he eventually followed) was unreasonable in view of the exculpatory testimony he would have provided and given that counsel's "stated tactical reason" for so recommending — avoiding opening the door to Terry's past convictions — was insufficient, since the existence of those convictions had already come out by the end of the government's case-in-chief. This unreasonableness was, Terry contends, further compounded by the fact that trial counsel had promised the jury in his opening statement that Terry would testify to explain a prior marijuana conviction. Second, even if we conclude that trial counsel's recommendation not to testify was reasonable, Terry claims that counsel's performance was nevertheless deficient because he incompletely or inaccurately informed Terry of the negative consequences of his decision not to testify, in contravention of counsel's obligation to assure that Terry's waiver of that right was intelligent, voluntary, and knowing.

We think it unlikely that trial counsel's performance in these regards was constitutionally deficient, especially given the deference we accord the delicate balancing involved in any attorney's decision to advise his client whether to take the stand in his own defense. But since it is so clear that counsel's purported deficiencies did not prejudice Terry, we need not analyze the sufficiency of counsel's performance as to these first two claims in detail.

A.

Before analyzing these first claims for prejudice, we must examine the manner in which Terry has alleged the "result of the proceeding" was affected by trial counsel's allegedly deficient performance. We note that Terry's ineffective assistance claims are all premised on his assertion that, as a drug conspiracy defendant, he faced the significant possibility of being sentenced for drug amounts not specified in his indictment, so it was "imperative" that trial counsel...