                                  ___________

                                  No. 95-4053
                                  ___________


Jerry L. McCauley-Bey,                *
                                      *
            Appellee,                 *
                                      *   Appeal from the United States
     v.                               *   District Court for the
                                      *   Eastern District of Missouri.
Paul K. Delo,                         *
                                      *
            Appellant.                *

                                  __________

                    Submitted:    September 10, 1996

                         Filed:   October 10, 1996
                                  __________

Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit
     Judges.
                            ___________


MAGILL, Circuit Judge.


     Jerry McCauley-Bey, serving a life sentence for second degree murder,
a consecutive life sentence for first degree assault, and two concurrent
thirty-year sentences for armed criminal action, petitioned in district
court for a writ of habeas corpus.    28 U.S.C. § 2254.   The district court
conditionally granted the writ.     The government appeals, and we reverse.


                                     I.


     On July 21, 1988, McCauley-Bey got into an argument with Garlon McCoy
and several of McCoy's friends.     The argument began after an intoxicated
McCoy urinated near McCauley-Bey and McCauley-Bey's girlfriend, Sharon
Mitchell.   McCauley-Bey's friend, Ricky
Hill, ran across the street and returned with two pistols.        After the
argument, McCoy and his friends got into a van.      McCauley-Bey and Hill
approached and McCauley-Bey began firing into the van.   After the first gun
was emptied, McCauley-Bey took the second gun from Hill and continued
shooting.   McCoy was killed and his friend, Ronnie Patrick, was wounded in
the knee.


     After McCauley-Bey's arrest but before trial, he received a letter
dated June 8, 1989, from trial counsel, Herman Jimerson, stating that three
witnesses, James Massey, Tyrone Mitchell, and Eva Washington, would not be
called because of their prior criminal histories.    McCauley-Bey responded
with a letter dated June 12, 1989, expressing disappointment and stating
that he still wanted the witnesses called.   The witnesses did not testify.
On June 29, 1989, a jury found McCauley-Bey guilty.


     Raising a claim of ineffective assistance of counsel based on his
trial counsel's failure to call the three witnesses, McCauley-Bey pursued
state postconviction relief without success.    McCauley-Bey was initially
denied an evidentiary hearing on his ineffective assistance claim, but
following appeal to the Missouri Court of Appeals, a hearing was held.
State v. McCauley, 831 S.W.2d 741 (Mo. App. 1992).   In anticipation of the
evidentiary hearing, McCauley-Bey requested access to his legal records and
on July 16, 1990, was given at least part of his file.       However, it is
unclear precisely when McCauley-Bey received copies of the aforementioned
correspondence with trial counsel.    The evidentiary hearing was held on
September 15, 1992.    The state courts rejected McCauley-Bey's claim of
ineffective assistance of counsel and found that trial counsel failed to
call the three witnesses because their names had not been given to him.
McCauley v. State, 866 S.W.2d 892, 894-95 (Mo. App. 1993).


     On January 31, 1994, McCauley-Bey filed a federal petition for a writ
of habeas corpus.   McCauley-Bey reasserted his claim of




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ineffective assistance of counsel.       On December 20, 1994, an evidentiary
hearing was held to determine why the three witnesses had not been called
by trial counsel.     On October 25, 1995, the district court granted a
conditional writ of habeas corpus.       The government now appeals.


                                     II.


      On appeal, the government argues that the prejudice prong of the
ineffective assistance of counsel test was not satisfied by counsel's
failure to call the three witnesses.1


      The claim of ineffective assistance of counsel is a mixed question
of law and fact.   Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir. 1988)
(en banc), cert. denied, 490 U.S. 1040 (1989).         Accordingly, the district
court's factual findings are subject to the clearly erroneous standard of
review, while the district court's legal conclusions are subject to de novo
review.   Id. at 1381-82.


      To be successful in a claim of ineffective assistance of counsel a
petitioner must demonstrate that counsel's performance was deficient, and
further, that the deficient performance prejudiced the defense.          Strickland
v. Washington, 466 U.S. 668, 687 (1984).     We need not decide if counsel was
ineffective if sufficient prejudice is not shown.          Id. at 697.     To show
prejudice,   "[t]he   defendant   must   show   that    there   is   a   reasonable
probability that, but for counsel's unprofessional errors, the result of
the




      1
      The government also argues that the district court erred in
granting an evidentiary hearing after McCauley-Bey received a
hearing in state court and that, without the federal evidentiary
hearing, the district court could not have found ineffective
assistance of counsel based on the state court record. Because we
find that there was no showing of prejudice based on the evidence
actually received by the district court, we need not reach these
issues.

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proceeding would have been different."              Id. at 694.        A reasonable
probability is one sufficient to undermine confidence in the outcome.               Id.
"[I]n determining the existence vel non of prejudice, the court 'must
consider   the   totality    of   the   evidence   before   the    judge    or   jury.'"
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466
U.S. at 695).    Applying these standards here, the petitioner has not shown
prejudice.


     In this case, we are required to add the proffered testimony of
McCauley-Bey's uncalled witnesses to the body of evidence that actually was
presented at his trial.      Using this hypothetical construct, we must gauge
the likely outcome of a trial based on this total body of evidence.
Prejudice exists if there is a reasonable probability that the outcome
would be different than that at the actual trial.                 In conducting this
analysis, we are mindful of: (1) the credibility of all witnesses,
including the likely impeachment of the uncalled defense witnesses; (2) the
interplay of the uncalled witnesses with the actual defense witnesses
called; and (3) the strength of the evidence actually presented by the
prosecution.


     First, the credibility of the uncalled witnesses is a part of
determining prejudice.      Wilson v. Kemna, 12 F.3d 145, 147 (8th Cir. 1994)
(uncalled witness was married to defendant at the time and therefore was
impeachable).    McCauley-Bey's three uncalled witnesses were all subject to
impeachment.     Neither James Massey, Tyrone Mitchell, nor Eva Washington
came forward promptly.      James Massey could have been impeached with a prior
assault conviction.      Tyrone Mitchell was the brother of McCauley-Bey's
girlfriend, Sharon Mitchell.      Further, Tyrone Mitchell's ability to observe
could have been challenged.         Initially, based on his testimony at the
evidentiary hearing, Mitchell would have testified at trial that he saw the
shooting, that he saw McCauley-Bey and Sharon Mitchell running from the
shooting, and that he was ducking during the shooting.                     In addition,
details of Tyrone Mitchell's account




                                         -4-
are not consistent with the testimony of other witnesses who testified that
the shooting took place at night with the shooter firing into the van while
standing between a truck and the van.               By contrast, Mitchell would have
stated that the shooting took place at dusk and that he saw no truck.
Mitchell was approximately three blocks away from the shooting; if the
truck was there, it likely would have blocked Mitchell's view.


     Second, the testimony of the uncalled witnesses is not considered in
a vacuum.     Strickland specifically directs that the totality of the
evidence be considered.          466 U.S. at 695.    Thus, the interplay between the
uncalled witnesses and the defense witnesses actually presented is at
issue.   McCauley-Bey presented himself, Ricky Hill, and Sharon Mitchell to
establish that he was not the gunman.              However, Ricky Hill was impeached
by prior statements consistent with the government's version of events.
Previously, Hill had told police that both he and McCauley-Bey had fired
the shots.     He repeated that account when he entered his guilty plea.
Likewise, Sharon Mitchell was impeached using a prior statement to police
that McCauley-Bey was the gunman.            Thus, even if the uncalled witnesses
were unimpeachable, which they clearly were not, their testimony would have
been weakened when the same version of events was also told by two
witnesses who earlier gave accounts consistent with the government's
witnesses.


     Finally,       there   is    no   prejudice    if,   factoring    in    the    uncalled
witnesses, the government's case remains overwhelming.                      Fast Horse v.
Class, 87 F.3d 1026, 1029 (8th Cir. 1996); United States v. Hubbard, 22
F.3d 1410, 1422 (7th Cir. 1994), cert. denied, 115 S. Ct. 762 (1995).                    The
substantial evidence against McCauley-Bey convinces us that there is not
a reasonable probability that the outcome of the trial would have been
different    if   the   uncalled       witnesses    had   testified.     The      government
presented    four    witnesses      whose   testimony      contradicts      the    proffered
testimony of the uncalled witnesses.           John Robinson, Ricky Davis, Michael
Norman, and Ronnie




                                            -5-
Patrick   all   testified   that   McCauley-Bey   fired   shots   into   the   van.
Robinson, Davis, and Norman also had previously identified McCauley-Bey as
the gunman both in a photo array and a lineup.


                                      III.


     The district court erred in finding prejudice and did not give proper
weight to the credibility of the uncalled witnesses, the interplay between
the uncalled witnesses and the actual defense witnesses called, and the
strength of the evidence presented by the prosecution.       For these reasons,
the judgment of the district court is reversed.


     A true copy.


            Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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