                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-3038
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Clarence Robinson,                     *
also known as Fuzzy,                   *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: April 16, 2002

                                 Filed: August 23, 2002
                                  ___________

Before BOWMAN, RILEY, and MELLOY, Circuit Judges.
                          ____________

BOWMAN, Circuit Judge.

      Clarence Robinson appeals from the District Court's1 denial of his 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence. We affirm.




      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
       In 1995, after a jury trial in federal district court, Robinson was convicted of
conspiracy to distribute cocaine base and sentenced to life imprisonment.2
Subsequently, Robinson brought his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence, alleging ineffective assistance of trial counsel Following a
hearing, the District Court denied relief and this Court granted Robinson's application
for a certificate of appealability. Because Robinson's claim of ineffective assistance
of counsel is a mixed question of law and fact, we review it de novo. United States
v. Reed, 179 F.3d 622, 624 (8th Cir. 1999). The underlying facts as found by the
district court are reviewed for clear error. Id.

       In order to prevail on a claim of ineffective assistance of counsel, Robinson
must show that counsel's performance was deficient and that the deficient
performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,
688, 691 (1984). To show prejudice, Robinson must show a reasonable probability
that absent the alleged errors of counsel he would have been found not guilty. See
Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir.), cert. denied, 519 U.S. 956
(1996). We may decide this appeal without reaching the question of deficiency if we
find that the performance of Robinson's attorney did not prejudice Robinson. See
United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

      Robinson asserts numerous instances of ineffective assistance of counsel by his
attorney, William Eustice.3 We turn first to Robinson's argument that Eustice failed

      2
       The facts underlying Robinson's convictions are discussed thoroughly by this
Court in our opinion affirming Robinson's conviction on direct appeal. United States
v. Robinson, 110 F.3d 1320 (8th Cir.), cert. denied, 522 U.S. 975 (1997). We see no
need to restate them here.
      3
       We address the arguments that Robinson makes most forcefully in his briefs
but note that he lists numerous deficiencies of counsel, inter alia: failure to file a
motion in limine (or any pre-trial motions); failure to "have a theory of the case"; the
decision to make no opening statement; failure to call Robinson as a witness; failure

                                          -2-
to investigate prior to trial a minor witness, Brian Duke, who along with other
witnesses testified to Robinson's involvement in the conspiracy. Robinson claims
that Duke's testimony was untruthful and could have easily been impeached by
Eustice if more pretrial investigation had been undertaken. We agree with the District
Court that even if Duke's testimony had been impeached the remainder of the
evidence clearly demonstrates Robinson's involvement in the conspiracy, and we
conclude Robinson has not shown a reasonable probability that the outcome of the
trial would have been different absent the alleged deficiency of counsel's
performance.

      Robinson also argues that Eustice did not reveal that he shared office space
with a lawyer who represented Duke, which Robinson claims was a conflict in
representation. Specifically, Robinson argues this conflict of interest compelled
Eustice to fail to find and call Duke as a witness. This alleged conflict based on
shared office space resembles the alleged conflict we addressed in Amrine v.
Bowersox, 238 F.3d 1023 (8th Cir.) (§ 2254), cert. denied, 122 S. Ct. 372 (2001). In
Amrine, we rejected the argument that the defendant's lawyer had a conflict of interest
when a lawyer from his office represented a witness in the case, where there was no
evidence that the alleged conflict affected counsel's performance. Id. at 1030 n.4.
Robinson presented no evidence that the conflict of interest alleged here affected
Eustice's performance, and both Eustice and Duke's lawyer testified that they did not
discuss the case. Also, because the witness in question is Duke and we already have

to object to the government's planned use of Federal Rule of Evidence 404(b)
evidence; and a few others. Br. of Appellant at 27. We held that admission of the
404(b) evidence was proper in the previous direct appeal. Robinson, 110 F.3d at
1325. As the District Court accurately stated, the numerosity of the alleged
deficiencies does not demonstrate by itself the necessity for habeas relief. See
Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir.) (rejecting the argument that
cumulative effect of errors alone demonstrated a deprivation of fair trial), cert. denied,
519 U.S. 968 (1996). We have reviewed all of the claimed deficiencies of counsel
and find no merit in any of them.

                                           -3-
held that the failure to locate him did not result in prejudice to Robinson, we agree
with the District Court there was no prejudice to Robinson as a result of the purported
conflict.

       Robinson claims that Eustice was ineffective in failing to submit proposed jury
instructions, especially a "theory of the case" instruction. Br. of Appellant at 16. We
note, as the District Court did, that the instructions given to the jury were model
Eighth Circuit instructions for conspiracy cases. These included instructions for
evaluating the credibility and motivation of co-conspirator testimony and the law on
aiding and abetting. Robinson fails to persuade us that the lack of a "theory of the
case" instruction was prejudicial to his case.

       Next, Robinson makes claims of ineffectiveness based on Eustice's closing
statement. Eustice had called no witnesses and had chosen instead to rely on
impeaching the prosecution witnesses and arguing that Robinson's "mere presence"
with members of the conspiracy was insufficient to prove his guilt.4 Consequently,
during the closing statement, Eustice placed Robinson in the company of some of the
co-conspirators on certain occasions, just as the evidence indicated and the
prosecution asserted.5 Eustice argued, however, that Robinson was not involved in
the conspiracy despite his presence among the co-conspirators. Eustice's decision to
argue that Robinson may have innocently been in the presence of the co-conspirators
was made in the context of significant prosecution testimony of Robinson's presence
and circumstances implying his involvement, including 404(b) evidence that


      4
        Eustice's strategy included seeking and receiving a "mere presence" instruction
for the jury.
      5
       In Robinson's direct appeal, we addressed Eustice's failure to object to the
prosecution's closing statements regarding the presence of Robinson with the co-
conspirators. We determined that this failure to object did not prejudice Robinson.
Robinson, 110 F.3d at 1327.

                                         -4-
Robinson had been involved with crack-cocaine possession. Eustice made the
judgment that as a matter of trial strategy it was better to maintain that Robinson was
innocent of the conspiracy than to deny Robinson's association with the co-
conspirators. We cannot say that Eustice's strategy as reflected in his closing
argument resulted in prejudice to Robinson.

        Robinson additionally argues that the District Court improperly denied his
motion for the appointment of an expert to offer opinion evidence on Robinson's
claim of ineffective assistance of counsel. We do not address this issue inasmuch as
it is not included in the certificate of appealability. See Fields v. United States, 201
F.3d 1025, 1026 n.2 (8th Cir. 2000) (holding that issues beyond the scope of
certificate of appealability are not properly before the court).

      Having considered all of Robinson's claims of ineffective assistance of counsel,
we affirm the District Court's denial of Robinson's § 2255 motion.

      A true copy.

             Attest:

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




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