U.S. v. Toms

• Decision Date: 01 February 2005
• Docket Number: No. 02-3082.,02-3082.
• Citation: 396 F.3d 427
• Parties: UNITED STATES of America, Appellee v. Ronald James TOMS, a/k/a Block, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

396 F.3d 427

UNITED STATES of America, Appellee v. Ronald James TOMS, a/k/a Block, Appellant

No. 02-3082.

United States Court of Appeals, District of Columbia Circuit.

Argued November 15, 2004.

Decided February 1, 2005.

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Appeal from the United States District Court for the District of Columbia (No. 93cr00367-01).

Elaine J. Mittleman argued the cause for appellant. On the briefs were Pleasant S. Brodnax, III and Mary E. Davis.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and John R. Fisher and Thomas J. Tourish, Jr., Assistant U.S. Attorneys. Roy W. McLeese, III, Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and TATEL and ROBERTS, Circuit Judges.

ROBERTS, Circuit Judge.

Appellant Ronald Toms appeals the district court's denial of his motion under 28 U.S.C. § 2255 to vacate convictions for several drug and firearms offenses. He argues that the deficient performance of his trial attorney deprived him of his constitutional right to effective assistance of counsel. We conclude that the district court did not err in denying Toms's motion or in refusing to conduct an evidentiary hearing, and affirm.

I.

In November 1993, a grand jury returned a superseding indictment against Toms and two co-defendants, Jimmy Thomas and Keith Bradley. The first count of the indictment charged all three men with conspiracy to distribute and to possess with intent to distribute 50 grams or more of cocaine base from 1987 to October 1993. 21 U.S.C. § 846. Three counts charged Toms and Bradley with offenses stemming from the circumstances of their September 10, 1993 arrests: possession of 50 grams or more of cocaine base with intent to distribute, 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(iii); using or carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c); and carrying a pistol without a license, D.C. CODE ANN. §§ 22-3204(a) & 105 (1981). Toms and Thomas were also charged with distributing cocaine base on two separate occasions in July and September 1993. Thomas and Bradley each pled guilty. Toms chose to proceed to trial.

At trial, the government presented evidence showing that from 1987 to 1993, Toms supplied crack cocaine to Thomas, Bradley, and ten to fifteen other street-level dealers in Washington, D.C. Thomas testified that he had received drugs from Toms "hundreds" of times, Trial Tr. 1/13/95 at 124, and saw Toms supplying other dealers on many occasions. This account was corroborated by the testimony of two other prosecution witnesses who at one time or another sold drugs in the same vicinity as Toms. Testimony from several law enforcement agents also indicated that, on four occasions between 1987 and 1992, Toms had been stopped in cars in which drugs, guns, or large amounts of cash were found.

The government also offered evidence regarding Toms's arrest. In September 1993, law enforcement officers had Toms and Bradley under surveillance. On September 10, the officers were following a vehicle Toms was driving with Bradley as a passenger. When Toms began speeding and weaving in and out of traffic, the officers pulled the vehicle over. After removing Toms and Bradley, the officers noticed a loaded nine-millimeter handgun on Bradley's seat. Searches at the scene revealed $2,000 in cash on Toms and another $8,000 stuffed in an air vent of the vehicle. The vehicle was impounded and searched more thoroughly. A drug-sniffing dog found a plastic bag containing 67.8 grams of cocaine base under the back seat. Evidence indicated that the vehicle belonged to Toms.

Faced with a strong case against his client, Toms's attorney pursued several lines of defense. First, he sought to cast doubt on Thomas's testimony. He noted that Thomas was cooperating with the government and had made inconsistent statements in an earlier affidavit. Two defense witnesses also stated that Thomas had told them he was supplied with drugs by a source in Detroit. Second, the defense called Bradley, who testified that the drugs and gun found in the vehicle belonged to him and that Toms was unaware of them. Finally, Toms himself took the stand, in part to explain that the large sum of cash recovered at the time of his arrest was intended for the production of a compact disc for a recording company he owned.

A jury convicted Toms on the conspiracy charge, the charge of possession with intent to distribute, and the two firearms charges. He was acquitted of the two counts of cocaine distribution. The court sentenced Toms to concurrent life sentences for the drug counts, followed by a consecutive five-year sentence on the federal weapons charge. He also received a one-year sentence on the second weapons charge, concurrent with the other sentences. We affirmed the conviction and sentence on appeal. United States v. Toms, 136 F.3d 176 (D.C.Cir.1998).

Toms subsequently filed a motion under 28 U.S.C. § 2255 asking the district court to vacate his convictions. He claimed that his attorney had committed a host of errors at trial, depriving him of his right to effective assistance of counsel. Toms pressed two principal arguments: first, that his attorney elicited damaging testimony about the criminal activities of Toms's family and friends; and second, that due to inadequate preparation, counsel was forced to stipulate to damaging evidence and failed to subpoena two defense witnesses whose testimony might have been helpful.¹ In addition to the claim of ineffective assistance, Toms argued that the jury had been contaminated when it was shown an exhibit that had not been admitted into evidence. In a supplemental motion, Toms restyled this claim as a charge that the prosecution had failed to disclose the exhibit as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).²

The district court found no merit to Toms's ineffective assistance claim and rejected his request for an evidentiary hearing. The same judge who had presided over Toms's trial found that counsel was prepared and that his decisions to elicit certain testimony about Toms's associates and not to subpoena the witnesses were part of a trial strategy, falling within the "wide range of reasonable professional assistance." Mem. Op. at 7. Furthermore, the court found that any errors by counsel were not prejudicial, given "the government's overwhelming evidence" against Toms. Id. at 14. The court also rejected Toms's Brady claim, on the ground that there was no reasonable probability that the result in the case would have been different had the exhibit been disclosed. Id. at 11.

On appeal, Toms renews his ineffective assistance and Brady claims and challenges the district court's refusal to hold a hearing on his section 2255 motion.

II.

It is well-established that the Sixth Amendment right to counsel comprehends "the right to effective assistance of counsel," Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984), and that Sixth Amendment claims may be raised in section 2255 proceedings, Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). A claim of ineffective assistance of counsel requires two showings: (1) that counsel's performance was deficient and (2) that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694, 104 S.Ct. at 2063, 2067. Our evaluation of counsel's performance is "highly deferential," and we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065.

The standard under which we review a district court's dismissal of a section 2255 petition alleging ineffective assistance is unsettled. Whether counsel's performance was deficient and whether any errors were prejudicial are mixed questions of law and fact, id. at 698, 104 S.Ct. at 2070; United States v. Weaver, 234 F.3d 42, 46 (D.C.Cir.2000); United States v. Askew, 88 F.3d 1065, 1070 (D.C.Cir.1996), but, as we pointed out in Askew, that does not define the proper standard of appellate review. See 88 F.3d at 1070-71. Determinations of mixed questions are sometimes reviewed de novo, see, e.g., Ornelas v. United States, 517 U.S. 690, 695-99, 116 S.Ct. 1657, 1660-62, 134 L.Ed.2d 911 (1996) (reasonable suspicion and probable cause), and sometimes only for abuse of discretion, see, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401-05, 110 S.Ct. 2447, 2458-60, 110 L.Ed.2d 359 (1990) (rulings under Federal Rule of Civil Procedure 11); Pierce v. Underwood, 487 U.S. 552, 557-63, 108 S.Ct. 2541, 2545-48, 101 L.Ed.2d 490 (1988) (whether legal positions are "substantially justified" under Equal Access to Justice Act). While other circuits have concluded that de novo review of district court rulings on ineffective assistance of counsel claims is appropriate, see, e.g., Cooper v. United States, 378 F.3d 638, 640 (7th Cir.2004); Pham v. United States, 317 F.3d 178, 182 (2d Cir.2003), we have thus far expressly declined to fix the appropriate standard, not having been confronted with a case in which the standard made a difference. See, e.g., Weaver, 234 F.3d at 46.

We persist in our agnosticism on the appropriate standard of review in this case. The parties have not joined issue on the question, and we are reluctant to decide such an important question in the absence of briefing and argument on it. It is unnecessary for us to do so, because we find that Toms's claim fails even under the more searching de novo standard.

A. Toms first argues that his attorney's lack of preparation caused him to enter into stipulations harmful to the defense. In particular, Toms objects to three stipulations: first, that cocaine residue was found on the floor and seat of the vehicle Toms was driving...