216 F.3d 1126 (D.C. Cir. 2000)
United States of America, Appelleev.Dennis L. Mitchell, Appellant
No. 99-3035
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 3, 2000Decided 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:


1
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

2
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  On  remand, the district court resentenced Mitchell to 151  months, and we affirmed in an unpublished order.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).


3
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


4
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

5
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:


6
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.


7
Rule 22(b) of the Federal Rules of Appellate Procedure  prescribes the procedure for seeking a COA:


8
(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.


9
(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.


10
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).


11
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.


12
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

13
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.


14
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 Strickland test.2  To bypass this hurdle, Mitchell invokes the rule that prejudice can be presumed "if a defendant can show that 'a conflict of interest actually affected the  adequacy of [the attorney's] representation....' "  Bruce, 89  F.3d at 893 (quoting Cuyler v. Sullivan, 446 U.S. 335, 349  (1980)).  Claiming that Robertson was suspended from the  practice of law in the District of Columbia during Mitchell's  trial, appellant argues that Robertson had a conflict of interest because he was preoccupied with his own disciplinary  proceedings and fear of sanctions and wanted to keep his  status concealed, so he did not expend extra funds reimbursable under the Criminal Justice Act as appointed counsel to  seek out Ms. Allen.


15
The district court did not resolve the issue of Robertson's  bar status.  The court noted that Robertson was in fact  admitted to practice before the district court during the  relevant period, but accepted the proposition that this admission may have been under questionable circumstances.  The  district court thus assumed for the sake of argument that  Robertson was suspended.  In any event, the suspension was  not in any way related to Robertson's conduct in representing  Mitchell.


16
Even if we also assume that Robertson was suspended,  Mitchell's conflict of interest scenario is simply too hypothetical to gain him relief.  There is no evidence that Robertson  would have needed extraordinary funds to find Allen or that  such expenditures would somehow trigger a review of his bar  qualifications.  We have been careful to guard against "defendants' attempts to force their ineffective assistance claims  into the 'actual conflict of interest' framework ... and thereby supplant the strict Strickland standard with the far more  lenient Cuyler test."  Bruce, 89 F.3d at 893;  see also United  States v. Taylor, 139 F.3d 924, 930-32 (D.C. Cir. 1998).Mitchell's conflict theory is such an attempt.  See United  States v. Maria-Martinez, 143 F.3d 914, 916-17 (5th Cir.  1998) ("[A]n undisclosed lack of credentials ... provide[s] an  incentive for lackluster representation, the theory goes, because the attorney will be concerned about drawing attention  to himself and encouraging an inquiry into his background."),  cert. denied, 525 U.S. 1107 (1999).  We could as easily say  that far from having a conflict of interest, Robertson had "an  incentive to do his best" to avoid a later ineffective assistance  claim and the exposure of his status.  United States v.  Leggett, 81 F.3d 220, 226-27 (D.C. Cir. 1996);  see also Vance  v. Lehman, 64 F.3d 119, 126 (3d Cir. 1995).  We conclude that  Mitchell's ineffectiveness claim on these grounds does not rise  to the level of a substantial showing of the denial of a  constitutional right.


17
Mitchell's second argument in support of his ineffective  assistance of counsel claim has slightly more promise.  Based  on a different line of precedent, he contends that Robertson's  suspension calls for a finding of per se ineffectiveness.  In  Harrison v. United States, 387 F.2d 203 (D.C. Cir. 1967),  rev'd on other grounds, 392 U.S. 219 (1968), where an exconvict posed as an attorney, we held that the requirements  of the Sixth Amendment "are not satisfied when the accused  is 'represented' by a layman masquerading as a qualified  attorney."  Id. at 212.  Mitchell candidly admits that other  courts have rejected a per se ineffectiveness rule for attorneys who have been licensed to practice law and later subjected to discipline such as suspension, but claims that Harrison  could support such a rule in an issue of "first impression" in  this circuit.  In his view, a generous reading could extend  Harrison and hold that a suspended attorney is not a "qualified attorney" because he is not currently "admitted to the  practice of the law, no matter how intelligent or well educated  he may be."  Id.


18
It appears that most courts facing the issue have held that  suspension or disbarment alone is not enough to make an  attorney per se ineffective.  See, e.g., Reese v. Peters, 926  F.2d 668, 670 (7th Cir. 1991);  Waterhouse v. Rodriguez, 848  F.2d 375, 383 (2d Cir. 1988);  United States v. Mouzin, 785  F.2d 682, 696-97 (9th Cir. 1986);  United States v. Myles, 10  F. Supp. 2d 31, 36 (D.D.C. 1998);  see generally Jay M. Zitter,  Annotation, Criminal Defendant's Representation by Person  Not Licensed to Practice Law as Violation of Right to Counsel, 19 A.L.R. 5th 351 (1994).  However, a few jurists  appear to have thought otherwise.  See In re Johnson, 822  P.2d 1317, 1323-24 (Cal. 1992) (applying California Constitution);  Ohio v. Newcombe, 577 N.E.2d 125, 126 (Ohio Ct. App.  1989);  Mouzin, 785 F.2d at 703-04 (Ferguson, J., dissenting).To more clearly define the contours of the issue in this circuit,  we grant a COA on Harrison's claim of per se ineffective  assistance of counsel.

III. Per Se Rule

19
We decline appellant's invitation to extend the per se  ineffectiveness rule beyond cases in which a defendant is  represented by a person never properly admitted to any bar. See, e.g., Solina v. United States, 709 F.2d 160, 168-69 (2d  Cir. 1983);  United States v. Novak, 903 F.2d 883, 886-90 (2d  Cir. 1990).  In fact, we earlier intimated such a limitation in  United States v. Butler, 504 F.2d 220 (D.C. Cir. 1974).There, appellant's trial counsel had not been admitted to the  local bar, and we stated that "[s]tanding alone, the mere fact  of a trial attorney's nonmembership in the local bar is not  necessarily sufficient to find that the right to effective counsel  was breached."  Id. at 223.  Instead, we found counsel ineffective in Butler only because in addition to the lack of bar  membership, there were numerous instances of attorney error at trial.  See id. at 224.


20
We hold that the fact of suspension does not, by itself,  render counsel ineffective under the Sixth Amendment.  Instead, the normal Strickland rule applies and a defendant  must meet his burden of showing deficient performance at  trial which resulted in prejudice.  See Mouzin, 785 F.2d at  696-97.  As the Ninth Circuit said in Mouzin:


21
Neither suspension nor disbarment invites a per se rulethat continued representation in an ongoing trial is con-stitutionally ineffective.  Admission to the bar allows usto assume that counsel has the training, knowledge, andability to represent a client who has chosen him.  Continued licensure normally gives a reliable signal to the public that the licensee is what he purports to a be--anattorney qualified to advise and represent a client.


22
Id. at 698.


23
As time passes, some admitted members of the bar incur  sanctions of suspension or disbarment which leave them no  longer entitled to lawfully practice the profession.  As the  Ninth Circuit noted, sometimes this "discipline flows from  revealed incompetence or untrustworthiness or turpitude  such as to deserve no client's confidence."  Id.  Sometimes,  however, the grounds of suspension are sufficiently unrelated  to the previously prevailing presumption of competence that  no inference can be drawn of ineffectiveness in representation.  Therefore, there is no logical reason to extend the per  se ineffectiveness rule beyond those instances already covered  in the Harrison presumption--when a defendant is represented by a person never properly admitted to the practice of  law.  Therefore, our examination in a case such as this  involving a suspended attorney is governed by Strickland v.  Washington, and requires the showing of incompetence and  prejudice that Mitchell has not made.3


24
Other circuits addressing the issue have reached similar  results.  Instead of extending a per se rule to cover various  states of attorney licensure, courts have considered the facts  of the cases to determine if counsel was ineffective.  See  Waterhouse, 848 F.2d at 383;  Vance, 64 F.3d at 122-26;Roach v. Martin, 757 F.2d 1463, 1479-80 (4th Cir. 1985);Maria-Martinez, 143 F.3d at 916-19;  Reese, 926 F.2d at 66970;  United States v. Hoffman, 733 F.2d 596, 599-601 (9th Cir.  1984);  United States v. Stevens, 978 F.2d 565, 568-69 (10th  Cir. 1992).  Therefore, although appellant's per se ineffective  assistance claim survives the hurdle of the certificate of  appealability, it merits no relief.

IV. Conclusion

25
In summary, we hold that the district court has the power  to issue certificates of appealability and is required to consider and make a decision on the COA issue before the court of  appeals will address it.  We further hold that although appellant was entitled to a COA on his claim of per se ineffective  assistance of counsel, his claim fails on the merits.  To the  extent we exercise jurisdiction to review the order of the  district court, it is


26
Affirmed.



Notes:


1
 Mitchell also claims that his equal protection rights were violated because federal statutes punish crack cocaine crime more severely than cocaine powder crimes.  This same argument was squarely  rejected in United States v. Johnson, 40 F.3d 436 (D.C. Cir. 1994),  and in Mitchell's direct appeal. See Mitchell, 49 F.3d at 781 n.5.Mitchell's citation of events which occurred after the governing  statutes were enacted adds nothing.


2
 Allen would have testified that Mitchell was not present when  Calvin Stevens, one of Mitchell's co-conspirators, retrieved a bag  from the attic of the house he shared with Allen and removed a  bundle of money from it.  Mitchell argues that because this evidence partially contradicts Stevens's trial testimony and partially  corroborates the contradictory testimony of another co-conspirator,  Paul Campbell, it would have cast doubt on his knowledge of illegal  activity and participation in the conspiracy.  But as the district  court pointed out Ms. Allen's testimony was cumulative, and other evidence in the form of a taped conversation between two of the coconspirators casts serious doubt on Mitchell's theory.


3
 A detailed discussion of the facts surrounding Professor Robertson's disciplinary difficulties is recounted in United States v. Myles,  10 F. Supp. 2d 31 (D.D.C. 1998).


