In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4337

JAMES W. BRUCE,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 98 C 171--Richard L. Young, Judge.

ARGUED MARCH 6, 2001--DECIDED July 5, 2001



  Before FAIRCHILD, CUDAHY and RIPPLE,
Circuit Judges.

  RIPPLE, Circuit Judge. James W. Bruce
appeals the denial of his motion for
post-conviction relief under 28 U.S.C.
sec. 2255. He alleges that his trial
counsel was ineffective for having failed
to investigate and call two alibi
witnesses who could have exonerated him
of involvement in two armed bank
robberies. Specifically, Mr. Bruce
contends that the district court
improperly denied him an evidentiary
hearing to resolve certain factual
disputes concerning the reasonableness of
counsel’s performance. For the reasons
set forth in the following opinion, we
reverse the judgment of the district
court and remand the case for proceedings
consistent with this opinion.

I

BACKGROUND

A.

  Mr. Bruce, along with a confederate,
Murray Woodworth, was convicted of
various counts in connection with four
armed bank robberies. Those convictions
were later affirmed by this court. See
United States v. Bruce, 109 F.3d 323 (7th
Cir. 1997). We shall assume familiarity
with that opinion and repeat here only
those matters necessary for an
understanding of the issue now before us.

  At trial, the Government attempted to
show that Mr. Bruce and Woodworth
followed a similar pattern in robbing
four Evansville, Indiana, banks between
October 1993 and February 1995. According
to the Government’s view, shortly before
each robbery, Woodworth purchased an
older vehicle and affixed to it a stolen
license plate. These vehicles then were
used to flee the victimized banks, but
quickly were abandoned for other
transportation. The prosecution also
suggested that common characteristics
other than the cars linked the robberies;
the perpetrators carried rifles or
shotguns, wore similar clothing such as
trench coats or ski masks, and chose late
Thursday or Friday afternoon for each
holdup. The Government developed
itstheory at trial by presenting the
following circumstances surrounding each
holdup.

  For the first robbery, Woodworth
purchased a 1978 black Lincoln
Continental. The following day, October
29, 1993, a Friday, he and Mr. Bruce,
disguised in full-face Halloween masks
and long trench coats and wielding
assault rifles, entered an Old National
Bank branch at 2:40 p.m. and robbed the
tellers of $91,500. The two men then
returned to the Lincoln, drove it a short
distance, and abandoned it for another
car. Affixed to the abandoned Lincoln was
a stolen Indiana license plate.

  For the second robbery, Woodworth
purchased a 1977 Dodge van. One week
later, on September 2, 1994, a Friday, at
3:00 p.m., Woodworth and Mr. Bruce, using
the van, robbed two Mid-West Federal
Savings employees of $13,050 as they were
attempting to fill an ATM machine.
Woodworth was armed with a shotgun during
the holdup. Mr. Bruce and Woodworth drove
a short distance from the crime scene and
then left the van, bearing a stolen
Kentucky license plate, for other
transportation.

  The third robbery occurred several weeks
later. On Thursday, October 27, 1994, at
2:45 p.m., the two men--one wearing a
black ski mask and trench coat and
carrying a handgun, the other holding an
assault rifle--robbed another Old
National Bank branch of $62,456. They
absconded in a brown Oldsmobile Cutlass,
but soon abandoned the vehicle. Woodworth
had purchased this car the previous day.
It bore a stolen Ohio license plate.

  The fourth robbery started out in a
similar fashion. On February 8, 1995,
Woodworth purchased an old blue van and
bolted to it a stolen Indiana license
plate. The following day (a Thursday) at
2:45 p.m., Mr. Bruce and he drove the van
to another Old National Bank branch.
Donning disguises (one of the men was
also wearing a trench coat) and armed
again with an assault rifle, they made
off with $54,963. This time, however,
their second vehicle broke down.
Desperate for transportation, they paid
$2,850 in cash for a blue pickup truck
from an off-duty Henderson, Kentucky,
police officer. The officer became
suspicious when he noticed that the men
were carrying shopping bags full of
clothes, and one bag had a Minnesota
license plate sticking out on top. The
officer contacted the Evansville police,
and, less than an hour later, police
found Mr. Bruce and Woodworth parking the
pickup in a storage facility. The two men
had cash from the bank, assault rifles,
loaded handguns and ammunition, and a bag
with disguises worn during the robbery
earlier that day. Police later discovered
more ammunition, police scanners, and six
12-gauge shotgun shells in a Henderson,
Kentucky, motel room in which the two men
had been staying.

B.

  Mr. Bruce and Woodworth were charged
with four counts of armed bank robbery,
18 U.S.C. sec.sec. 2113(a) & (d); one
count of conspiracy to commit armed bank
robbery, 18 U.S.C. sec.sec. 371, 2113(a)
& (d); and four counts of using a firearm
during and in relation to a crime of
violence, 18 U.S.C. sec. 924(c). Each was
also individually charged with one count
of possession of a firearm by a felon, 18
U.S.C. sec. 922(g)(1). An attorney was
appointed defense counsel for Mr. Bruce.

  Defense counsel obtained a severance of
the counts relating to the fourth robbery
from all of the other counts. Following a
trial on the counts relating to the
fourth robbery, defense counsel obtained
another severance that separated the
counts pertaining to the first three
robberies from the felon-in-possession
counts. The felon-in-possession counts
subsequently were dismissed by the
Government.

  In July 1995, Mr. Bruce and Woodworth
went to trial on the charges relating to
the February 9, 1995, robbery. The
prosecution presented three days of
testimony. Defense counsel presented no
witnesses and chose only to cross-examine
certain prosecution witnesses. The jury
found both men guilty of armed robbery
and of the use of a firearm during and in
relation to a crime of violence.

  The court then scheduled a second trial
for February 5, 1996, on the remaining
counts. On February 2, 1996, at Mr.
Bruce’s request, his defense counsel
moved for a continuance on the ground
that Mr. Bruce had identified potential
exculpatory witnesses, and counsel needed
time to locate them and to arrange for
their appearances. The district court
denied that motion on February 4, 1996,
but stated that "[i]f a witness should
materialize . . . Defendant Bruce will
have the opportunity to move this Court
to suspend proceedings until the jury can
hear the alibi testimony." Trial Court
("TC") R.68 at 3.

  The following morning, immediately
before trial was scheduled to begin, Mr.
Bruce sought permission to address the
court. At his defense counsel’s urging,
Mr. Bruce told the court that counsel had
ignored his requests to investigate
certain alibi witnesses. Mr. Bruce stated
that his defense counsel had visited him
the previous week and "got real
belligerent with me over a letter that I
wrote him and explained to him that I
needed my witnesses here in court." TC
R.88, Vol.I (2/5/96) at 11. The court
asked Mr. Bruce some general questions
about witnesses he wished to call and
then announced that it would not
entertain any delays to the start of the
second trial.

  In this second trial, the Government
presented its case largely through
eyewitness identification of Mr. Bruce as
one of the two masked perpetrators of the
robberies. In Mr. Bruce’s defense, his
defense counsel called only one alibi
witness, William Turberville. Turberville
testified that Mr. Bruce dated his
daughter, Betty Thompson, from December
1993 until his arrest. Turberville said
he was with Mr. Bruce at the Michigan
State Fair on September 5, 1994, and he
believed that he was working with Mr.
Bruce at a Michigan motel on September 2,
1994, the date of the second robbery. The
jury was apparently not persuaded by
Turberville’s testimony; it returned a
verdict against Mr. Bruce and Woodworth
on all remaining counts. Mr. Bruce
received stiff sentences for those
convictions--a total of 901 months’
imprisonment.

C.

  Nearly two years later, Mr. Bruce filed
a pro se motion under sec. 2255 to set
aside his convictions based on
ineffective assistance of defense
counsel. He requested an evidentiary
hearing. Mr. Bruce alleged that his trial
defensecounsel, who also had served as
counsel on direct appeal, was ineffective
for failing to investigate the proposed
testimony of his alibi witnesses. The
district court/1 ordered Mr. Bruce to
supplement his motion with additional
facts supporting his claim. In response,
Mr. Bruce proffered the affidavits of
Betty Thompson and Edward Barton (a
former co-worker), who claimed to have
been with Mr. Bruce on the days that two
of the bank robberies occurred. According
to Mr. Bruce, these witnesses were "very
crucial to this case" because they would
have given "credible testimony" of his
"whereabouts," and no jury "would convict
the defendant while hearing testimony of
witnesses who were with the defendant on
the dates in question." Post Conviction
("PC") R.2 at 9. In her affidavit,
Thompson asserted that Mr. Bruce could
not have committed a bank robbery in
Indiana on September 2, 1994, because he
was with her at the Michigan State Fair
that day. She further stated that she
contacted defense counsel about this
matter in January 1996, one month before
Mr. Bruce’s second trial. Similarly,
Barton stated through his affidavit that
Mr. Bruce was with him on October 29,
1993 (the date of the first bank
robbery), laying floor tile at a friend’s
house. Barton further asserted that he
had been contacted by Mr. Bruce’s mother
while Mr. Bruce was awaiting trial and
that he had contacted defense counsel to
inform him of Mr. Bruce’s "whereabouts on
October 29, 1993." PC R.14 at 2. Both
Thompson and Barton asserted that defense
counsel never contacted them about their
testimony.

  The Government countered with an
affidavit from defense counsel to show
that his decision not to investigate
these witnesses was tactical. In that
affidavit, defense counsel asserted that
he did "not have a specific recollection"
of Mr. Bruce’s requesting that he call
alibi witnesses, but he had a "general
recollection" that Mr. Bruce suggested
calling such witnesses and that they
discussed this possibility. PC R.22, Ex.I
at 1-2. He recalled that he "either did
subpoena such witnesses or that there was
a compelling reason why [he] did not or
could not subpoena them." Id. at 2.
Although counsel stated that he decided
not to call these witnesses for "tactical
reasons based upon my knowledge of the
evidence and my experience as a trial
attorney," nowhere in the affidavit did
he identify those tactical reasons. Id.

  The district court denied Mr. Bruce’s
request for an evidentiary hearing and
the motion for postconviction relief.
Relying on defense counsel’s affidavit,
the court stated that

the presumption that Bruce’s attorney’s
[sic] rendered reasonably effective
assistance is reinforced by the
attorney’s uncontested affidavit that he
was aware of the possibility of calling
possible alibi witnesses, that this
possibility was discussed with Bruce,
that there was a conscious decision made
not to call the possible alibi witnesses,
and that the decision not to call the
possible witnesses was based on Bruce’s
attorney’s knowledge of the evidence and
experience as a trial attorney.

PC R.23 at 2. The court held that Mr.
Bruce had not "overcome that presumption"
and that counsel’s failure to subpoena or
to produce possible alibi witnesses was
not ineffective under the applicable
standard. Id.

  We granted a certificate of
appealability limited to the issue of
whether Mr. Bruce was denied effective
assistance of counsel. We also appointed
appellate counsel for Mr. Bruce.

II

DISCUSSION

A.

  In reviewing the ineffective assistance
claim, we review the district court’s
conclusions of law de novo, see Fountain
v. United States, 211 F.3d 429, 433 (7th
Cir. 2000), its factual findings for
clear error, see id., and its denial of
an evidentiary hearing for an abuse of
discretion, see Prewitt v. United States,
83 F.3d 812, 820 (7th Cir. 1996).

  Mr. Bruce contends that the district
court should have granted him an
evidentiary hearing on his claim that
counsel was ineffective for failing to
investigate Thompson’s and Barton’s
proposed testimony. Mr. Bruce points out
that defense counsel admitted in his
affidavit that he did not recall these
particular alibi witnesses; Mr. Bruce
further notes that counsel provided no
factual basis for his assertion that his
decision not to subpoena or call alibi
witnesses was based on his knowledge and
experience as a trial attorney. Under
these circumstances, Mr. Bruce argues,
the district court should not have
presumed that counsel’s failure to
investigate and call alibi witnesses was
a reasoned judgment based on adequate
investigation. Rather, the court should
have held a hearing to resolve
discrepancies in the record.

  The principles governing the situation
before us are well-established. A
district court need not grant an
evidentiary hearing in all sec. 2255
cases. Such a hearing is not required if
"the motion and the files and records of
the case conclusively show that the
prisoner is entitled to no relief." 28
U.S.C. sec. 2255; see also Menzer v.
United States, 200 F.3d 1000, 1006 (7th
Cir. 2000). In addition, a hearing is not
necessary if the petitioner makes
allegations that are "vague, conclusory,
or palpably incredible," rather than
"detailed and specific." Machibroda v.
United States, 368 U.S. 487, 495 (1962);
see also Prewitt, 83 F.3d at 819. A
district court, however, must grant an
evidentiary hearing if the petitioner
"alleges facts that, if proven, would
entitle him to relief." Stoia v. United
States, 22 F.3d 766, 768 (7th Cir. 1994).


B.

  To prevail on a claim of ineffective
assistance of counsel, Mr. Bruce must
show that defense counsel’s performance
was so deficient as to fall below an
objective standard of reasonable
competence and that the deficient
performance prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668,
687 (1984). A failure to investigate
known potential alibi witnesses can
satisfy the "performance" prong./2 The
district court therefore was required to
assess whether defense counsel
sufficiently investigated the proposed
alibi witnesses’ testimony. "[S]trategic
choices made after thorough investigation
of law and facts relevant to plausible
options are virtually unchallengeable;
and strategic choices made after less
than complete investigation are
reasonable precisely to the extent that
reasonable professional judgments support
the limitations on investigation."
Strickland, 466 U.S. at 690-91.

  Here, the record simply is not adequate
to permit the district court to make the
determination that we have just
described. There remains a question of
fact as to whether defense counsel
adequately assessed the potential alibi
witnesses. Thompson and Barton, the
potential witnesses, stated in their
affidavits the specific alibi testimony
that they had been prepared to give at
trial. They stated unequivocally that
they had contacted defense counsel prior
to trial and had advised him of the
specific nature of the testimony that
they were prepared to give. Both
testified as well that defense counsel
did not contact them. Thompson noted that
she had been present at trial and
inquired of defense counsel why he had
not contacted her. His reply was that the
case against Mr. Bruce was "cut and
dried." PC R.15 at 2. Mr. Bruce’s
affidavit states that he advised defense
counsel of the witnesses’ names and
addresses and the substance of their
expected testimony. In the face of these
affidavits, defense counsel submitted an
affidavit that charitably can be
characterized as conclusory. We set out
in full the operative paragraph:

4. Mr. Bruce also asserts that I failed to
call certain alibi witnesses. I do not
have a specific recollection of Mr. Bruce
requesting that I call alibi witnesses,
but do have a general recollection that
he suggested and we did discuss the
possibility of calling such witnesses. I
did not fail to investigate and attempt
to locate the alibi witnesses suggested
by Mr. Bruce. My recollection is that we
either did subpoena such witnesses or
that there was a compelling reason why we
did not or could not subpoena them. In
any case, the decision not to call alibi
witnesses was made for tactical reasons
based upon my knowledge of the evidence
and my experience as a trial attorney.

PC R.22, Ex.1 at 1-2.

  Despite the specific allegations by
Barton, Thompson, and Mr. Bruce, defense
counsel claims in his affidavit that he
has no specific recollection of Mr.
Bruce’s having asked that alibi witnesses
be called and has only a general
recollection of a discussion on the
subject. He further contradicts the
statements of the potential witnesses
that he failed to locate or investigate
these witnesses. He cannot remember why
the witnesses were not called, but
instead relies, with absolutely no
factual support, on "tactical reasons
based upon my knowledge of the evidence
and my experience as a trial attorney."
Id. at 2. Because Mr. Bruce’s only
defense was an alibi, defense counsel’s
decision to forgo interviewing potential
alibi witnesses cannot be considered,
without some factual basis, a tactical
choice entitled to deference.

  Despite the conflicting affidavits and
defense counsel’s conclusory assertions,
the district court characterized defense
counsel’s testimony as "uncontested" and
upheld the decision not to call alibi
witnesses as "sound trial strategy" that
was made "after a reasonable
investigation." PC R.23 at 2. Without any
factual basis for defense
counsel’sassertions and in light of the
affidavits of the potential defense
witnesses, the district court had no
basis upon which to arrive at this
conclusion without holding a hearing./3
C.

   Even if we were to assume that Mr. Bruce
can show that counsel’s performance was
deficient, there would be no need for a
remand unless Mr. Bruce can also show
that counsel’s sub-par performance
prejudiced his defense. See Strickland,
466 U.S. at 693-94. Prejudice requires
Mr. Bruce to establish a "reasonable
probability" that counsel’s failure to
investigate and call Thompson and Barton
affected the trial’s outcome. United
States v. Morrison, 946 F.2d 484, 500
(7th Cir. 1991); see also Foster v. Ward,
182 F.3d 1177, 1185 & n.1 (10th Cir.
1999) (citing cases to show that the
prejudicial effect of failing to
investigate alibi testimony is not
subject to a per se rule, but must
instead be determined on a case-by-case
basis). Because the district court found
counsel’s assistance to be reasonably
effective, it did not discuss the
question of prejudice other than to
mention, in conclusory fashion, that Mr.
Bruce "received a fair trial." PC R.23 at
3.

  Mr. Bruce argues that the testimony of
Thompson and Barton would have proved
that he was with them in Michigan during
the armed bank robberies that took place
in Indiana on October 29, 1993, and
September 2, 1994. The Government, on the
other hand, has not attempted to
undertake any sort of prejudice analysis;
its written submissions to both the
district court and this court focus
exclusively on Strickland’s performance
inquiry. Although we note that the
Government’s case at trial relied heavily
on eyewitness identification of Mr. Bruce
as one of two masked perpetrators of the
robberies, we decline to resolve the
prejudice issue here. In our view, the
district court should have the
opportunity in the first instance to
assess "what information would have been
obtained from [a reasonable]
investigation and whether such
information, assuming its admissibility
in court, would have produced a different
result." United States ex rel. Cross v.
DeRobertis, 811 F.2d 1008, 1016 (7th Cir.
1987).

  What the district court discovers on
remand after a full examination of
counsel’s performance may well "shed a
valuable cross-light" upon the prejudice
inquiry: If the alibi witnesses’
testimony had been favorable to Mr.
Bruce, the district court will have to
weigh on remand "whether, in light of the
defense’s theory of the case, its
omission was so central as to establish
the probability that the jury would not
have returned a finding of guilt." Id. at
1013, 1017; see also Hendricks v.
Vasquez, 974 F.2d 1099, 1110 (9th Cir.
1992) ("[A]ssuming the performance was
deficient, we cannot determine, without
the benefit of an evidentiary hearing,
whether that performance had any probable
effect on the outcome."); Lawrence v.
Armontrout, 900 F.2d 127, 131 (8th Cir.
1990) (remanding for an evidentiary
hearing "to determine whether trial
counsel’s failure to investigate and call
alibi witnesses prejudiced Lawrence’s
defense"). Testimony by defense counsel
and the alibi witnesses presumably will
enable the court to assess the adequacy
of the representation afforded Mr. Bruce
and to determine whether that
representation was prejudicial.

Conclusion

  On this record, the district court
should have conducted an evidentiary
hearing on Mr. Bruce’s claim of
ineffective assistance of counsel for
failure to investigate. Accordingly, the
judgment of the district court is
reversed, and the case is remanded for
proceedings consistent with this opinion.

REVERSED and REMANDED

FOOTNOTES

/1 The judge who presided over the sec. 2255 pro-
ceedings was not the judge who had presided over
the criminal trial.

/2 See Washington v. Smith, 219 F.3d 620, 629-31
(7th Cir. 2000) (performance prong met when
counsel failed to produce critical alibi witness
at trial; counsel made only "minimal attempts" to
contact witness before trial and waited to sub-
poena her until two days before she was to
testify, despite knowing that she was "hard to
reach"); Montgomery v. Petersen, 846 F.2d 407,
413-14 (7th Cir. 1988) (performance prong met
when counsel failed to investigate the "only
disinterested witness in the case," a store clerk
from whom petitioner allegedly purchased bicycle
on day of robbery) (emphasis in original); see
also Brown v. Myers, 137 F.3d 1154, 1156-57 (9th
Cir. 1998) ("no dispute" that performance prong
was met when counsel failed to investigate peti-
tioner’s alibi claim or present any alibi wit-
nesses to corroborate his testimony); Hadley v.
Groose, 97 F.3d 1131, 1135 (8th Cir. 1996) (per-
formance prong satisfied when counsel "made no
effort" to investigate potential alibi witness
whose name was provided by defendant); Bryant v.
Scott, 28 F.3d 1411, 1415-18 (5th Cir. 1994)
(performance prong met when counsel failed to
investigate and interview potential alibi wit-
nesses, even though witnesses’ names were not
made available to counsel until pretrial hearing
three days before trial); Griffin v. Warden, Md.
Corr. Adjustment Ctr., 970 F.2d 1355, 1358 (4th
Cir. 1992) (performance prong "easily met" when
counsel failed to contact robbery defendant’s
alibi witnesses); Code v. Montgomery, 799 F.2d
1481, 1483-84 (11th Cir. 1986) (performance prong
met when counsel’s sole strategy was to present
alibi defense, but he terminated his pretrial
investigation "without determining whether the
one witness he contacted could provide an ali-
bi").

/3 Cf. Clark v. Redman, No. 86-2050, 1988 WL 138971,
at *4 (6th Cir. Dec. 28, 1988) (unpublished
order) (counsel’s statement regarding "normal
practice" of investigating potentially exculpato-
ry witnesses is irrelevant to issue whether he
had contacted alibi witnesses in this case).
