USA v. Mitchell

• Decision Date: 30 June 2000
• Docket Number: No. 99-3035,99-3035
• Citation: 216 F.3d 1126
• Parties: (D.C. Cir. 2000) United States of America, Appellee v. Dennis L. Mitchell, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1126

216 F.3d 1126 (D.C. Cir. 2000)

United States of America, Appellee v. Dennis L. Mitchell, Appellant

No. 99-3035

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 3, 2000

Decided June 30, 2000

[Copyrighted Material Omitted]

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. § 2255. After deciding some previously unsettled procedural issues concerning certificates of appealability ("COA") necessary to appeal the denial of § 2255 motions, we grant a COA as to appellant'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. §§ 846, 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(iii). Mitchell was sentenced 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 On remand, the district court resentenced Mitchell to 151 months, and we affirmed in an unpublished order.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. § 2255.He asserted two claims of ineffective assistance of counsel:(1) ineffective assistance because his attorney at trial, Professor 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 practice of the law in the District of Columbia during the representation period.¹

The district court denied the motion. Mitchell filed a notice of appeal without first seeking a certificate of appealability as required by 28 U.S.C. § 2253(c)(1) (Supp. IV 1998).We appointed counsel for Mitchell, and directed the parties, while not otherwise limited, to address the following questions: (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 substantial showing of the denial of a constitutional right" required 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 § 2255 petition stems from 28 U.S.C. § 2253(c)(1), which states in relevant part:

Unless a circuit justice or judge issues a certificate ofappealability, an appeal may not be taken to the court ofappeals from ... the final order in a proceeding undersection 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. § 2255 proceeding, the applicant can not take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability un-der 28 U.S.C. § 2253(c). If an applicant files a notice of appeal, the district judge who rendered the judgment 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 denied 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. § 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 GrantChase v. Commissioner, New Hampshire Dep't of Corrections, 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 requests 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 application in this case is not jurisdictional, given the language of 28 U.S.C. § 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 Procedure 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. § 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 ineffectiveness. 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 considered 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 testimony, however, was plainly insufficient to satisfy the second prong of the...