United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 13-3320
     ___________________________

                Ronald Weaver

    lllllllllllllllllllllPetitioner - Appellee

                        v.

          United States of America

   lllllllllllllllllllllRespondent - Appellant
      ___________________________

             No. 13-3321
     ___________________________

                Ronald Weaver

    lllllllllllllllllllllPetitioner - Appellant

                        v.

          United States of America

    lllllllllllllllllllllRespondent - Appellee
                    ____________

 Appeals from United States District Court
for the Northern District of Iowa - Sioux City
               ____________
                              Submitted: April 13, 2015
                                 Filed: July 16, 2015
                                   ____________

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
                             ____________

RILEY, Chief Judge.

       A jury convicted Ronald Weaver of conspiracy to manufacture and distribute
and possession with intent to distribute cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) and 846. After we denied Weaver relief on direct appeal, see
United States v. Weaver, 554 F.3d 718, 719 (8th Cir. 2009), Weaver moved to vacate
his sentence under 28 U.S.C. § 2255(a). Concluding Weaver’s sentencing counsel
was ineffective by failing to move for a new trial before sentencing, the district court
vacated Weaver’s conviction and ordered a new trial. The government appeals, and
Weaver cross-appeals the district court’s denial of two claims of ineffective
assistance of trial counsel. We affirm the district court’s denial of Weaver’s motion
on the two alternative grounds, but we reverse the district court’s order vacating
Weaver’s conviction.1

I.    BACKGROUND
      On October 24, 2006, in a second superseding indictment, a federal grand jury
charged Weaver and co-defendants Carvell England and Jamale Key, among others,
with crack-cocaine conspiracy and possession crimes. England pled guilty on April
17, 2007, and Key pled guilty on April 19, 2007. Of six co-defendants, only Weaver
proceeded to trial beginning April 24, 2007, and a jury found him guilty on both
charged counts. Weaver filed a motion for a new trial, which the district court


      1
      We have appellate jurisdiction under 28 U.S.C. § 1291. See also 28 U.S.C.
§ 2253(a).

                                          -2-
denied. Weaver’s trial counsel, Chad Primmer, then moved to withdraw as attorney.
The district court granted the motion and appointed Stuart Dornan to represent
Weaver for sentencing.

        The district court convened Weaver’s sentencing hearing on June 2, 2008, after
co-defendants England and Key already had been sentenced. Although neither
England, Weaver’s “godbrother,” nor Key, Weaver’s cousin, testified at Weaver’s
jury trial, both testified on Weaver’s behalf at his sentencing hearing. England
testified, in effect, that Weaver had nothing to do with the crimes charged against
him. Key similarly testified Weaver was not involved in the charged conspiracy and
distribution conduct. The district court sentenced Weaver to 300 months
imprisonment on each of the two counts, to run concurrently.

        After his unsuccessful direct appeal, Weaver moved to vacate his sentence
under 28 U.S.C. § 2255(a), claiming, among other things, ineffective assistance of
trial counsel. The district court heard argument on the motion on April 18-19, 2012,
and then ordered supplemental briefing to address “whether [Weaver] is entitled to
relief on a claim of ineffective assistance of counsel in relation to Attorney Stuart
Dornan’s potential failure to file a motion for a new trial at or prior to sentencing
based on his knowledge that Carvell England and Jamale Key were then willing to
testify.” The district court heard further argument on August 6, 2012.

       The district court denied Weaver’s § 2255 claims as to trial counsel Primmer,
but found sentencing counsel “Dornan provided ineffective assistance of counsel by
failing to file a [second] Motion for a New Trial,” which the district court stated it
“would have granted” to allow Weaver to call England and Key as exculpating
witnesses. The district court decided Weaver was “now entitled to a new trial” and
entered judgment in Weaver’s favor, vacating Weaver’s conviction. The government
appealed, and Weaver cross-appealed. The district court granted a certificate of



                                         -3-
appealability to Weaver2 on his claims of ineffective assistance of trial counsel,
among other things.

II.    DISCUSSION
       We evaluate a claim of ineffective assistance of both trial counsel and
sentencing counsel by following the standard articulated in Strickland v. Washington,
466 U.S. 668, 671, 687 (1984). See, e.g., Theus v. United States, 611 F.3d 441, 446
(8th Cir. 2010). To succeed, Weaver “must show that counsel’s performance was
deficient” and “that the deficient performance prejudiced the defense.” Strickland,
466 U.S. at 687. “In any case presenting an ineffectiveness claim, the performance
inquiry must be whether counsel’s assistance was reasonable considering all the
circumstances.” Id. at 688. We “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 689. And
“strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Id. at 690. “We review [Weaver’s]
ineffective assistance claim[s] de novo and review the district court’s factual findings
for clear error.” Scott v. United States, 473 F.3d 1262, 1263 (8th Cir. 2007).

      A.       Trial Counsel
               1.     England and Key
        Weaver alleges the district court erred by not finding trial counsel Primmer
ineffective for “fail[ing] to determine whether Mr. Key and Mr. England were willing
to testify” at trial “on Mr. Weaver’s behalf.” Weaver submitted affidavits signed in
2010 by England and Key, each of whom stated he willingly would have testified at
trial, but Primmer had not contacted him or his lawyer about the matter.




      2
      The government did not need a certificate of appealability to bring this appeal.
See Fed. R. App. P. 22(b)(3).

                                          -4-
       At the § 2255 hearing, Primmer testified that before trial, Weaver told Primmer
“the codefendants in this matter would like to testify on his behalf.” So on April 20,
2007, after England and Key had pled guilty and before Weaver’s trial, Primmer
contacted Matthew Metzgar, England’s attorney, and Joseph Flannery, Key’s
attorney, by email—because “[e]thically if somebody’s represented by a lawyer,
[Primmer had] to first speak to their lawyer.” In the email, with subject heading
“Ronald Weaver,” Primmer stated,

      I was notified by my client yesterday afternoon that some or all of your
      clients wish to testify on his behalf at his trial starting next week. I am
      not going to speak with any of your clients without permission. Could
      each of you comment on whether or not there is any accuracy to this or
      if I have permission to contact your client.

That same day, Primmer filed an “Application for Maintenance of Prisoners” with the
district court, stating Weaver told Primmer that England and Key wanted to testify on
Weaver’s behalf and requesting England and Key be available to testify at trial on
April 24, 2007. The district court ordered that both potential witnesses be available
during the trial.

       Primmer testified that his “recollection is that at least one lawyer called [him]
back and was adamant that his client wanted nothing to do with it and that [the
lawyer] didn’t want to expose his client to obstruction of justice or perjury or other
further harm than they already were facing,” and that none of the lawyers “indicated
that their client was willing to testify.” Specifically, Primmer testified he met with
Metzgar at the courthouse during Weaver’s trial, and Metzgar told Primmer that
England “wasn’t willing to testify.” Similarly, Primmer stated Flannery informed
Primmer in a phone call that Key would not testify. In both instances, Primmer stated
he could “rely on [Metzgar’s and Flannery’s] professional representation[s] to [him],”
and Primmer did not believe Metzgar and Flannery were lying because they were
“honest people.”

                                          -5-
       Primmer further testified the lawyers’ responses to his email were
commensurate with his experience as a defense lawyer, because “if you object to
particular relevant conduct in your presentence report or if you testify in a manner
that the court deems isn’t correct, you could lose acceptance of responsibility [credit
at sentencing]. You could face obstruction of justice. Or you could face another
separate indictment for . . . perjury.” Primmer concluded that for the testifying
witness, “a bad situation gets very bad. . . . [A]lmost nothing good can come of it.”
Nevertheless, Primmer stated “if either [England or Key] were willing to come into
court and testify for Mr. Weaver, [Primmer] absolutely would have called them.”

       Metzgar testified he advised England not to testify at Weaver’s trial, and after
that discussion “[England] wasn’t going to speak to Mr. Primmer.” Metzgar testified
England did not tell him England wanted to testify on Weaver’s behalf. Flannery
explained he advised Key not to testify for any proceeding, in part because of
possible questions about an unrelated murder case. Flannery stated that he and Key
“both agreed that he should not talk to anyone” because things “could have gotten a
lot worse for [Key].” Flannery stated he communicated this to Primmer by telephone.
Primmer took these refusals to mean that England and Key would invoke their Fifth
Amendment right against self-incrimination should they be called to the witness
stand.

        As the district court observed, Primmer did exactly what Weaver requested him
to do—he investigated the possibility of England and Key testifying at trial. Primmer
filed the application with the court to ensure England and Key, both prisoners, would
be available to testify. Primmer emailed England’s and Key’s attorneys to inquire
whether they would testify. Neither attorney responded positively to Primmer’s
email.

       But Weaver suggests Primmer should have subpoenaed England and Key and
then interviewed them outside the presence of the jury pursuant to Federal Rule of

                                         -6-
Evidence 104(a), (c) as to whether each intended to invoke his Fifth Amendment right
against self-incrimination.3 See United States v. Campbell, 410 F.3d 456, 463 (8th
Cir. 2005) (describing such a procedure). This would have required Primmer to doubt
Metzgar’s and Flannery’s representations that their clients refused to testify, which
Primmer himself believed was the reasonable course to take, because “nothing good
[could] come of it” for England or Key. Weaver fails to rebut the “strong
presumption,” Strickland, 466 U.S. at 689, that Primmer acted reasonably when he
investigated England’s and Key’s availability, was rebuffed by each co-defendant’s
attorney, and in fact believed both England and Key had refused to testify for Weaver.
Primmer made “strategic choices” based on “reasonable professional judgments
support[ing] the limitations on investigation” and fulfilled his “duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Id. at 690-91.

            2.    18 U.S.C. § 3161(c)(2) Writing Requirement
      Weaver initially appeared and was arraigned on a second superseding
indictment on April 13, 2007. At that time, trial for Weaver’s co-defendants, who




      3
        Weaver cites United States v. Lofton, 333 F.3d 874, 875-76 (8th Cir. 2003),
in support of his argument, where we noted defendant Lofton “could have called [a
co-defendant] as a defense witness at trial” when, after trial, the co-defendant claimed
he would have testified favorably in Lofton’s behalf. Lofton is inapposite in this
context, because in Lofton, there was no indication that at the time of trial the co-
defendant had stated through counsel he would not testify, whereas here, Primmer
had every reason to believe from their legal counsel that England and Key had
refused to testify. See id. Weaver also contends “Primmer apparently did not know
that he could determine the invocation of the 5th Amendment outside the presence of
the jury.” This contention is refuted by Primmer’s testimony that he “would have
done that” “if [he] thought [either] lawyer was lying to [him]” and while such a
procedure is possible, he “also [could] rely on [Metzgar’s and Flannery’s]
professional representation[s] to [him].”

                                          -7-
eventually pled guilty, was set to begin ten days later on April 23, 2007.4 At the
arraignment, trial counsel Primmer assured the magistrate judge that Weaver wanted
to go ahead with the April 23 trial date. The magistrate judge asked Primmer if he
had “been involved in this case already,” to which Primmer replied,

      I’ve been representing Mr. Weaver for some time on matters both
      relating to this as well as his pending indictment in the Southern District
      of Iowa in Des Moines. This case was previously a state case. I have
      had access through Mr. Weaver of all copies of state discovery materials
      and state depositions [and] the U.S. Attorney’s Office in Sioux City and
      [the assistant U.S. Attorney] have previously made available all
      discovery materials in this particular case.

The following colloquy ensued:

      THE COURT:                  Mr. Weaver, . . . do you understand that you
                                  have the right to insist on more time to get
                                  ready for trial if you want?

      THE DEFENDANT:              Yes, sir.

      THE COURT:                  And is it correct that you wish to go ahead on
                                  the April 23rd date as scheduled?

      THE DEFENDANT:              Yes, sir.

       Weaver now alleges trial counsel Primmer rendered ineffective assistance by
“fail[ing] to object to Mr. Weaver’s oral waiver [of] his right to have [thirty] days to
prepare for trial.” See 18 U.S.C. § 3161(c)(2) (“Unless the defendant consents in
writing to the contrary, the trial shall not commence less than thirty days from the
date on which the defendant first appears through counsel.” (emphasis added)).
Weaver’s oral waiver did not comport with the plain requirements of § 3161(c)(2).

      4
          The trial date was soon changed to April 24, 2007.

                                          -8-
Assuming without deciding Primmer’s failure to object, despite Weaver’s explicit
oral waiver, amounted to deficient performance under Strickland, we look to see if
Weaver was prejudiced by any such deficiency. See Strickland, 466 U.S. at 687.

        Weaver alleges prejudice due to the short time span between arraignment and
trial, contending that additional preparation time would have allowed Primmer “to
research and identify the proper procedure for determining whether Mr. Key and Mr.
England would have testified on Mr. Weaver’s behalf. If [Primmer] had done so, . . .
Mr. Weaver would have been acquitted.” We note Key was sentenced in September
2007 and England was sentenced in November 2007, so a continuance extending the
trial date to thirty days past Weaver’s initial appearance in April 2007 still would
have resulted in a trial occurring before each co-defendant’s sentencing hearing, with
the same risks to each co-defendant if either decided to testify. In addition, as the
district court noted, “it is clear from the record that Mr. Primmer was more familiar
with the file than the U.S. attorney (because he had previously [represented] Mr.
Weaver) and decided to leverage his superior knowledge of the case by quickly
proceeding to trial.”

       As previously described, Primmer followed a reasonable procedure for
investigating England’s and Key’s willingness to testify. Weaver has not established
he was prejudiced by the lack of a written waiver of the thirty-day § 3161(c)(2)
requirement, because Weaver has not shown any additional time allotted for trial
preparation would have changed Primmer’s reasonable trial strategy or otherwise
affected his effectiveness. Because Weaver has not “met the burden of showing that
the decision reached would reasonably likely have been different absent the error[],”
Strickland, 466 U.S. at 696, he has not proven a claim of ineffective assistance due
to lack of compliance with § 3161(c)(2).




                                         -9-
       B.     Sentencing Counsel
       Weaver successfully argued in the district court that sentencing counsel Dornan
failed to provide effective assistance when he did not file a second motion for a new
trial. The district court faulted Dornan for not inquiring into whether England and
Key would have offered exculpating testimony at Weaver’s trial when Dornan knew
they were willing to do so at Weaver’s sentencing hearing. Weaver contends
England’s and Key’s exculpating testimony would have amounted to “newly
discovered evidence” under Federal Rule of Criminal Procedure 33(b)(1) (allowing
a “motion for a new trial grounded on newly discovered evidence”).

       “When newly discovered evidence is the ground for a § 2255 motion, the
district court should apply the same substantive test which governs a motion for a
new trial under Fed. R. Crim. P. 33 premised upon the same ground.” Lindhorst v.
United States, 658 F.2d 598, 602 (8th Cir. 1981) (quotation omitted); see Fed. R.
Crim. P. 33(a) (“Upon the defendant’s motion, the court may vacate any judgment
and grant a new trial if the interest of justice so requires.”). “[W]here an affidavit is
not available until after trial, if the factual basis for the testimony in the affidavit
existed before trial, then it is not newly discovered evidence.” United States v. Bell,
761 F.3d 900, 911 (8th Cir. 2014). And “‘when a defendant who has chosen not to
testify subsequently comes forward to offer testimony exculpating a codefendant, the
evidence is not newly discovered,’” Lofton, 333 F.3d at 875-76 (alteration omitted)
(quoting United States v. Offutt, 736 F.2d 1199, 1202 (8th Cir. 1984) (per curiam)),
“especially where the moving party knows about the involvement of that witness,”
Bell, 761 F.3d at 911.




                                          -10-
       In its order vacating Weaver’s sentence, the district court stated England’s and
Key’s “attorneys told them not to testify before their sentencing.”5 The district court
credited Metzgar’s and Flannery’s testimony as follows:

      Attorneys Joe Flannery and Matt Metzgar, who represented Mr. Key and
      Mr. England, respectively, also testified at the evidentiary hearing. Mr.
      Metzgar stated that he communicated Mr. Primmer’s request to his client
      but that he advised his client not to testify on Mr. Weaver’s behalf. Mr.
      Flannery stated that he told Mr. Primmer that Mr. Key would not testify
      on Mr. Weaver’s behalf. (The Court notes that Mr. Key and Mr.
      England were advised not to testify for valid, strategic reasons in their
      own cases, related to possible incrimination and sentencing
      enhancements).

(Emphasis added). The district court further stated, “[A]ccording to Mr. Key and Mr.
England, they were always willing to testify for Mr. Weaver, although their respective
counsel advised against it.” The district court explained,

      Based on the evidence currently before the Court, it seems clear Mr. Key
      and Mr. England would have told Mr. Dornan that they would have been
      happy to testify at trial, even though their attorneys opposed such
      testimony. The fact that co-conspirators were willing to testify on Mr.
      Weaver’s behalf at trial, but did not, should have formed the basis for a
      Motion for a New Trial.

      The record evidence does not support the district court’s factual finding.
England and Key testified at Weaver’s sentencing hearing in 2008, submitted
affidavits sworn in 2010, and testified at Weaver’s § 2255 hearings in April 2012 and
August 2012. Nowhere did either state he would have been willing to testify against
the advice of counsel. Nothing in England’s or Key’s affidavits or testimony


      5
        At the same time, the district court correctly pointed out “there is no evidence
that Mr. Key was ever told by Mr. Flannery that Mr. Weaver wanted him to testify at
trial.”

                                         -11-
indicates either knew what that advice of counsel would have been because neither
admits to having spoken with his attorney about the matter.

        For example, in England’s 2010 affidavit, he declares, “[M]y lawyer never even
had a conversation with me about [Weaver’s] lawyer wanting me to testify in
[Weaver’s] behalf, because if he would have I would have testified in his behalf
without any hesitation.” Similarly, in Key’s 2010 affidavit, he proclaims, “[M]y
lawyer and I have never been approached with this matter, nor have we ever had such
a conversation with [M]r. Weaver’s lawyer pertaining to this matter, because if we
would have, I would have gladly . . . testified in [M]r. Weaver’s behalf.” Thus both
England and Key directly contradict the district court’s factual finding that their
attorneys told them, at the time of trial in April 2007, about the possible repercussions
of testifying and both were still willing to testify and risk greater punishment. So any
finding based on England’s and Key’s post-sentencing affidavits and testimony as to
what either would have done in April 2007, before sentencing, is conjecture shaped
by “the distorting effects of hindsight.” Strickland, 466 U.S. at 689.

      The district court’s factual finding that “Mr. Key and Mr. England would have
told Mr. Dornan that they would have been happy to testify at trial, even though their
attorneys opposed such testimony” may well be true—they may well have told
Dornan exactly that, after the potential harm to their sentencing hearings was mooted.
But we cannot conclude, based on the record before us, that either would have
advised his own attorney to tell Primmer the same thing in April 2007, before their
sentencings.

      We also note neither England nor Key credibly claims he told his counsel
before trial in April 2007 he wanted to testify on Weaver’s behalf, as one would




                                          -12-
expect from the urgency of their affidavits.6 Rather, each says he did not discuss the
matter with counsel. This is particularly surprising for England, who knew Weaver
wanted him to testify at trial—Weaver’s mother relayed Weaver’s request to England.
England claims he wanted to testify for Weaver “from the beginning, from the start
even when the case was state” but does not explain why he never mentioned this to
his lawyer.

       As Dornan succinctly put it, he did not file a motion for a new trial because
England’s and Key’s new exculpatory testimony was, at the time of the sentencing
hearing in 2008, “newly available,” rather than “newly discovered.” See Bell, 761
F.3d at 911 (“‘Rule 33 does not authorize district courts to grant new trials on the
basis of such evidence since it is not newly discovered, but merely newly available.’”
(quoting United States v. Owen, 500 F.3d 83, 89 (2d Cir. 2007))). “[W]here, as in
this case, a defendant knew or should have known, that his codefendant could offer
material testimony as to the defendant’s role in the charged crime, the defendant
cannot claim that he ‘discovered’ that evidence only after trial.” Owen, 500 F.3d at
91; see id. at 91-92 n.5 (stating whether testimony was deemed “newly discovered”
was not dependent upon the attorney’s diligence at trial to procure the testimony of
a co-defendant exercising his right to avoid self-incrimination); see also United States
v. Moore, 221 F.3d 1056, 1058 (8th Cir. 2000) (“Although [the defendant] argues that
[his co-defendant] was an unavailable witness [at the time of trial] since he was
awaiting sentencing for his role in the drug conspiracy, this court has held that ‘when
a defendant who has chosen not to testify subsequently comes forward to offer


      6
        Key testified at Weaver’s April § 2255 hearing that Primmer had contacted
Flannery, but Flannery “didn’t inform” Key and Key didn’t know Weaver wanted
Key to testify until after Key “fired Mr. Flannery”—Key stated three times he did not
speak with Flannery about Weaver’s request before Weaver’s trial, and he repeated
that testimony at the August § 2255 hearing. At one point during the August § 2255
hearing, Key gave conflicting testimony that he “remember[ed] letting [his] lawyer
know” he wanted to testify for Weaver, yet Key was “never called . . . to trial.”

                                         -13-
testimony exculpating a codefendant, the evidence is not newly discovered.’”
(quoting United States v. Mosby, 12 F.3d 137, 138 (8th Cir. 1993) (per curiam))).
Dornan reasonably did not believe he “could in good faith proceed” to seek a motion
for a new trial at sentencing and did not “think ethically [he] could proceed in that
fashion.”

        Considering the totality of the circumstances, sentencing counsel Dornan
reasonably “rel[ied] upon the general rule that belated exculpatory testimony by a
codefendant who did not testify at trial is not newly discovered evidence,” Lofton,
333 F.3d at 876, and reasonably concluded England’s and Key’s silence at the time
of trial and change of heart after Weaver’s trial and after their sentencing hearings did
not constitute newly discovered evidence. See Bell, 761 F.3d at 911; United States
v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993). We conclude the district court erred
in concluding that sentencing counsel Dornan provided ineffective assistance in
failing to file a second motion for a new trial.

III.  CONCLUSION
      We affirm in part and reverse in part, and we reinstate Weaver’s conviction and
sentence.
                      ______________________________




                                          -14-
