Appeal from the United States District Court for the Eastern District of Illinois, Danville Division. No. 76 CR 28 -- Harold A. Baker, Judge.
Before WOOD, CUDAHY, and COFFEY, Circuit Judges.
Per Curiam. Defendant-appellant Curtis appeals from a final judgment of the district court denying his motion to vacate his conviction of bank robbery. 28 U.S.C. § 2255. the motion, filed on March 4, 1980, originally was summarily dismissed. Curtis appealed. This court, in an unpublished order dated March 1, 1982, reversed and remanded the case for an evidentiary hearing on Curtis' ineffective assistance of counsel claim. On the basis of the evidence adduced at that hearing, the district court concluded that trial counsel's representation was competent and effective.
Curtis was convicted of bank robbery largely on the testimony of Harris, co-defendant turned government star witness. Harris placed both Curtis and his car at the "switch site," where the exchange of cars was to take place following the robbery.
In his section 2255 motion, Curtis alleged that the following acts and omissions by counsel constituted ineffective assistance: (1) counsel failed to investigate Curtis' alibi defense; (2) counsel failed to present witnesses or evidence at trial to impeach Harris' testimony; and (3) counsel refused to permit Curtis to testify despite Curtis' clearly expressed desire to do so.
Both Curtis and his trial counsel, Isaiah Gant, testified at the evidentiary hearing. Gant's testimony may be summarized as follows. In initial interviews with Curtis at the jail, Curtis had denied involvement in the bank robbery, had provided Gant with a list of alibi witnesses, and had informed Gant of a repair receipt which would establish that his car was in a repair shop in Chicago at the time of the robbery in St. Anne. Subsequently, Curtis' two other co-defendants, who were released on bond, sought out Gant and informed him that Curtis and his car were involved in the robbery. When Gant confronted Curtis with this information, Curtis admitted to Gant that he had participated in the robbery. Despite that admission, Curtis insisted that Gant should seek to introduce the repair receipt into evidence at trial, stating that the shop mechanic would testify on his behalf. Gant's determination not to attempt to introduce the repair receipt, which he believed to be bogus based on his conversations with Curtis' co-defendants, was strengthened when he saw the mechanic at the courthouse prior to trial, and learned that he had been speaking with the prosecutor and had been subpoenaed by the government as a witness. When Gant asked the mechanic whether he would testify on behalf of Curtis, the mechanic responded that he did not want to get involved. Gant then informed Curtis that any attempt to introduce the repair receipt would be a crucial mistake.
Gant stated that the alibi witnesses suggested by Curtis were not called because Gant knew their testimony would be false.*fn1 Gant further testified that he determined not to call certain witnesses who were prepared to testify that Curtis and Harris had had a falling out because their lack of credibility outweighed any impeachment value their testimony might have.
Finally, Gant testified that his decision not to call Curtis as a witness was based upon his assessment that the best way to defend Curtis was to challenge the credibility of the government's witnesses and point out inconsistencies in the government's case; his belief that Curtis would perjure himself; and his determination that Curtis' two prior convictions of armed robbery, which would have been revealed to the jury on cross-examination, would have irreparably damaged the defense.
The most relevant portion of Curtis' testimony at the hearing was his assertion that he had not admitted his participation in the robbery to Gant. The district judge specifically stated that he believed Gant, not Curtis, on this point.
On the basis of the testimony, the district court concluded that Curtis had informed Gant of the witnesses who, and evidence which, allegedly would establish Curtis' alibi; that Gant investigated the asserted defense; and that Gant properly determined not to present the testimony of the witnesses or the documentary evidence because he believed the former would be perjured and the latter to be fabricated. The court further concluded that Gant's refusal to permit Curtis to testify was justified under the circumstances.
The Supreme Court recently held that the proper standard for judging an attorney's performance under the sixth amendment is that of "reasonably effective assistance." Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). A convicted defendant must show that counsel's performance fell below an "objective standard of reasonableness." Id. at 2065.Specifically, the defendant must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 2066. The reviewing court then must assess whether, in light of all circumstances, these acts or omissions fell outside the wide range of professionally competent assistance. The second prong of an ineffective assistance of counsel analysis requires an assessment of prejudice resulting from the specified deficiencies in counsel's performance.
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id. at 2068. In other words, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a ...