     Case: 10-30233   Document: 00511958153     Page: 1   Date Filed: 08/15/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                    August 15, 2012

                                   No. 10-30233                     Lyle W. Cayce
                                                                         Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff – Appellee
v.

KENNETH EARL WINES, also known as Crazy,

                                             Defendant – Appellant



                  Appeal from the United States District Court
                     for the Western District of Louisiana



Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
        This appeal is from the denial of relief under 28 U.S.C. § 2255. The § 2255
motion asserts a claim that trial counsel rendered ineffective assistance by
advising the appellant, Kenneth Earl Wines, not to testify in his federal criminal
trial. Because he fails to demonstrate that he was prejudiced, Wines has not
established a constitutional violation and is not entitled to § 2255 relief. We
therefore affirm the judgment of the district court.
  Case: 10-30233       Document: 00511958153     Page: 2   Date Filed: 08/15/2012



                                    No. 10-30233

                                          I.
                                         A.
         We first recount the evidence presented at Wines’s criminal trial at which
he was convicted by a jury. We will later deal with his § 2255 evidentiary
hearing.
         On September 30, 2002, sometime after three in the morning, in West
Monroe, Louisiana, Marvin Chappell, a co-conspirator, was driving a Ford
Expedition, belonging to Wines’s stepfather, a resident of Dallas, Texas. An
Ouachita Parish sheriff’s deputy pulled over Chappell, and Chappell consented
to a search of the vehicle. The sheriff’s deputy found nine ounces of crack
cocaine hidden in the vehicle’s sound speakers. Officers questioned Chappell,
who told them that the drugs belonged to a man named “Crazy.” Chappell
agreed to cooperate with the sheriff’s department to lure “Crazy” to a nearby
truck stop, through the ruse of telling him that the Expedition had broken down
there.
         In order to contact “Crazy,” Chappell called a “girl named Felicia.” Then,
Felicia made a three-way call to Wines’s phone. Wines handed the phone to
Bernice Woodson, Wines’s long-time friend and co-conspirator; and Chappell
informed Woodson of his car troubles. Wines, Woodson, and Aurora Shine –
Woodson’s girlfriend – arrived at the truck stop parking lot in the same rental
car. After the group talked to Chappell about the breakdown, they drove away
to a nearby gas station. Once the group arrived at the gas station, Woodson
exited the car, walked back toward Chappell at the truck stop, and began talking
to an undercover officer, who was posing as an auto mechanic. As Woodson was
talking to the undercover agent, Wines and Shine drove away, leaving Woodson
stranded at the truck stop. Woodson was arrested at the truck stop, and the
officers, following Wines’s and Shine’s car, arrested them.



                                          2
   Case: 10-30233   Document: 00511958153      Page: 3   Date Filed: 08/15/2012



                                 No. 10-30233

      Ouachita Parish Sheriff’s Department Deputy Bob Morris testified at trial
that, upon arrest, Chappell knew Wines by the name of “Crazy” and that
Chappell identified Wines as his Dallas-area drug supplier. Further, Woodson,
upon arrest, affirmatively identified Wines as the group’s supplier.
      After he was arrested, Woodson told agents the location of Wines’s house
in Dallas and that Wines kept several firearms in the house. Dallas County
Sheriff’s Department officers searched the home at 1651 Blue Meadow Street
and seized 262 grams of crack cocaine, 226 grams of marijuana, two digital
scales, seven firearms, and $31,110 in cash. During the search, the Sheriff’s
Department officers found a rent receipt for the house made out to “Tyrone
Davis.”
      In 2004, Wines was indicted for conspiracy with intent to distribute
cocaine base (count1), conspiracy to distribute marijuana (count 2), possession
with intent to distribute cocaine base (count 3), and possession of a firearm in
furtherance of and in relation to a drug trafficking crime (count 4).
                                       B.
      At the criminal trial that followed, Woodson testified that the night before
the arrests he was at Wines’s house at 1651 Blue Meadow Street. He said that
he watched Wines cook crack cocaine and, then, Wines hid the cocaine in the
speaker box of the Expedition, which Chappell was driving. Chappell left that
night for Lake Providence, Louisiana. Wines and Woodson were not too far
behind Chappell, because they both had a mandatory criminal court appearance
in Monroe, Louisiana at ten o’clock the next day, apparently concerning a
marijuana charge committed in the area, which included Lake Providence.
      According to Woodson, he had once been the “big man” in a drug
conspiracy and was ten years older than Wines. However, because of his
multiple stints in prison and his large amount of attorney’s fees, Woodson had
lost his drug kingpin status and was working for Wines at the time of the

                                        3
   Case: 10-30233   Document: 00511958153      Page: 4    Date Filed: 08/15/2012



                                  No. 10-30233

incident. Woodson further testified that although the men had known each
other for more than a decade, they had lost touch for quite a while. They
reunited during a chance encounter at a gas station, and Wines recruited
Woodson to drive him to Lake Providence, Louisiana to sell crack cocaine and
marijuana.
      Altogether, the men took at least nine of these interstate, drug-selling road
trips to the Lake Providence area before they were arrested on the present
charges. Woodson testified that he introduced Wines to Chappell, a man who
fathered a baby with Woodson’s sister. After he was recruited into the operation,
Chappell assumed responsibility for transporting the drugs to Lake Providence.
      In addition to Woodson, the owner of the house at 1651 Blue Meadow
Street, Lorene Smith, testified for the government. Smith said that she had
leased the home to “Tyrone Davis,” that she had met “Tyrone Davis” four times,
and that she received payment for the rent through money order from him. She
specifically identified Wines as “Tyrone Davis.”
      After the prosecution rested, the defense presented its case. Wines’s
defense attorney called only two witnesses: Chappell, who invoked his right to
remain silent under the Fifth Amendment, and Erma Wines, Wines’s mother.
The defense attorney did not call Wines to testify.
      Erma Wines, who also lived in Dallas, testified during direct examination
that Wines had been living with her since March 2002, almost six months before
the traffic stop in Ouachita Parish. She also said that she knew that Woodson
and Chappell moved into the Blue Meadow house after Wines moved out and
testified to seeing the men there playing dominoes on more than one occasion.
She further testified that Wines had been at her house for a barbeque on the
night before Wines’s arrest until almost 2:30 a.m. and then he left for Monroe.
When asked during cross-examination how she knew Woodson, she testified
that she had met him in 1993 when Wines “got his . . . first case.” She said that

                                        4
   Case: 10-30233      Document: 00511958153         Page: 5    Date Filed: 08/15/2012



                                      No. 10-30233

Woodson and others gave Wines “a sack” and told him to “run with it and put it
up.” Wines’s mother also said that the drug involved was cocaine and that
Wines went to jail for the offense.
       A jury found Wines guilty on all four counts: conspiracy with intent to
distribute cocaine base, conspiracy to distribute marijuana, possession with
intent to distribute cocaine base, and possession of a firearm in furtherance of
and in relation to a drug trafficking crime. The district court sentenced him to
360 months of imprisonment on the first three counts, to be served concurrently,
and sixty months of imprisonment on count 4, to be served consecutively. Thus,
Wines was sentenced to a total of 420 months of imprisonment (35 years).
Wines’s conviction and sentence were affirmed by this court on direct appeal.1
                                            II.
       We now turn to the § 2255 proceeding before us. After he exhausted his
remedies on direct appeal, Wines filed a pro se 28 U.S.C. § 2255 motion in which
he asserted that his trial counsel was ineffective for (1) failing to investigate
Chappell; (2) failing to subpoena certain witnesses; (3) failing to question the
fact that Woodson gave a written statement to law enforcement officers, despite
Woodson admitting that he was unable to read or write; (4) failing to question
the fact that all of the evidence against Wines was provided by Shine; (5) failing
to adequately discuss Wines’s case with him; (6) refusing to pursue courses of
action at Wines’s request; and (6) failing to call Wines to testify even though
Wines instructed him to do so. In reply to the government’s answer to his § 2255
motion, Wines further asserted that if he was allowed to testify, he would have
informed the jury that he never traveled from Dallas to Louisiana with Chappell
and that he and Chappell were “enemies.” Wines also requested an evidentiary
hearing.

       1
        The district court later reduced Wines’s sentence pursuant to 18 U.S.C. § 3582(c)(2)
to 384 months (32 years).

                                             5
   Case: 10-30233    Document: 00511958153      Page: 6    Date Filed: 08/15/2012



                                  No. 10-30233

      The district court appointed the Federal Public Defender to represent
Wines and granted Wines’s request for an evidentiary hearing regarding his
claim that his counsel was ineffective for failing to allow him to testify at trial.
      At the evidentiary hearing, which was assigned to a magistrate judge, only
two people testified: Wines and Wines’s trial counsel, Walter Caldwell IV.
      Wines testified that he was living at his mother’s house in Dallas at the
time of the incident at the Louisiana truck stop. He said that the night before
his arrest in West Monroe, he was at his mother’s house until almost 2:00 a.m.
Almost an hour after the barbeque ended, Woodson arrived and asked Wines if
he wanted to ride together to Monroe for their court appearance. Wines agreed,
and the men traveled to Monroe for their court appearance without incident.
      However, on their way out of court that morning in Monroe, someone
called Wines’s mobile phone and asked to speak to Woodson. After talking on
the phone, Woodson asked if they could stop off in West Monroe, Louisiana to
help a friend. Wines told him that was not a problem.
      Once the men arrived – along with Shine – at the truck stop on Well Road,
Woodson got out of the car to help his friend, Chappell, and then came back and
said that he needed to be taken to a “part house” to get a part that was needed
for the car Chappell was driving. The men could not find the “part house,” so
Woodson got out of the car and walked back to the truck stop. Wines then drove
back toward Dallas with Shine but was soon arrested in West Monroe.
      Wines further testified that he had lived in the Blue Meadow residence
with his “baby mom,” but they had separated and moved out, and Woodson
moved in afterwards for about eight or nine months until the arrests. Wines also
stated that his nickname was “K-Love,” not “Crazy” and that he never used
“Tyrone Davis” as an alias.
      Wines testified that when he talked to his trial counsel about testifying,
his lawyer told him that the government would bring up his prior convictions.

                                         6
   Case: 10-30233      Document: 00511958153         Page: 7    Date Filed: 08/15/2012



                                      No. 10-30233

Wines explained that “a couple” of the offenses were committed by someone
using his name, but he did admit to committing the 1992 or 1993 offense for
possession of drugs with the intent to distribute.
       Wines said that after all of the witnesses had testified, he asked his
counsel whether he was going to allow him to take the stand, and his counsel
responded that he was “comfortable” with the way things were progressing at
trial. Wines stated that he told his trial lawyer that “he could at least give
[Wines] a chance to fight for [his] life” because he was not confident with what
he had seen. Although counsel told Wines that his past was an issue, Wines
responded that his past was already known through his mother’s testimony.
Wines elaborated that he did not complain at trial about not being allowed to
testify because he did not know that he could complain and, in any event, he did
not know how to raise the issue on his own.
       Wines testified that he did not make any statements to police after his
arrest because he “wasn’t aware of what was going on” and because he was
“lost.” He also denied knowing that Chappell had drugs in the car and denied
assisting Chappell by loading the drugs into Wines’s stepfather’s Expedition.2
Wines also said that he was prepared to testify at the time of trial and that he
would have testified consistently with his evidentiary hearing testimony. He
says that he would have told the jury that he was innocent.
       Wines’s trial counsel, Walter Caldwell IV, also testified at the evidentiary
hearing. He said that he could not remember any specific conversations that he
had with Wines during trial, but “I certainly know that at some point we



       2
        Wines also explained that the reason that Chappell – whom Wines denied ever having
any drug trafficking association with – was in possession of Wines’s stepfather's truck was
because Chappell was a shade-tree mechanic in Dallas and a friend of his stepfather's. Wines
said that Chappell probably had the truck for repairs but did not attempt to explain why it
was in West Monroe, loaded with nine ounces of crack cocaine.


                                             7
   Case: 10-30233    Document: 00511958153      Page: 8    Date Filed: 08/15/2012



                                  No. 10-30233

probably discussed it and I probably advised him against it.” Caldwell was sure
that he had never told any of his clients that “[y]ou cannot testify” or that “[y]ou
must testify.” He continued that “I’ve always told that person, ‘that’s one of the
decisions you get to make in this case is whether or not you testify.” He
understood that he “certainly” could not have “preclude[d] Mr. Wines from
testifying at trial.” Caldwell told the court that he had a preference against
allowing his clients to testify because he has “found that individuals that tend
to testify, a lot of times end up hanging themselves.” He stated that if Wines
had been called to testify, the government would have quickly asked him about
his prior conviction of a drug-related charge. Additionally, there was no need for
Wines to testify because he had not made any statements to the police that
needed to be explained.
      Ultimately, after hearing the testimony from both Wines and his trial
attorney, the magistrate judge recommended that Wines’s § 2255 motion be
denied. The magistrate judge determined that Wines had not proved his counsel
was ineffective for failing to call Wines to testify. The magistrate judge further
determined that Wines had not overcome the strong presumption that his
counsel’s decision was the result of sound trial strategy, because evidence of
Wines’s prior convictions would have been introduced and there would have been
a subsequent jury instruction reminding the jury about the convictions. The
magistrate judge also found that even if trial counsel’s decision was not sound
trial strategy, Wines had not shown that he was prejudiced by counsel’s failure
to call Wines as a witness. Furthermore, the magistrate judge found that there
were no other grounds upon which Wines was entitled to habeas relief.
      The district court adopted the magistrate judge’s Report and
Recommendation, almost in its entirety, and denied Wines’s §2255 motion.
      In addition to denying Wines’s § 2255 motion, the district court denied
Wines a certificate of appealability (“COA”). Wines then sought a COA from this

                                         8
   Case: 10-30233   Document: 00511958153      Page: 9   Date Filed: 08/15/2012



                                  No. 10-30233

court. We concluded that Wines had not shown that the record supported a
determination that his counsel prevented him from testifying at trial. We held,
however, that Wines had shown that reasonable jurists would find it debatable
whether the district court committed reversible error when it determined that
Wines’s counsel was not ineffective for advising him not to testify at trial.
      Thus, the only issue before the panel at this time is whether Wines’s trial
counsel rendered ineffective assistance by advising him not to testify on his own
behalf.
                                       III.
      In determining whether counsel’s performance was ineffective, we apply
the familiar test of Strickland v. Washington, 466 U.S. 668 (1984). See Pape v.
Thaler, 645 F.3d 281, 288 (5th Cir. 2011). To establish that counsel was
ineffective, the defendant must prove: (1) “that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment” Strickland, 466 U.S. at 687 and (2) “that the deficient
performance prejudiced the defense.” Id. To prove that trial counsel’s deficient
performance prejudiced the defense, the defendant must demonstrate that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome [of
a criminal trial].” Id. This is a heavy burden which requires a “substantial,” and
not just a “conceivable,” likelihood of a different result. Harrington v. Richter,
131 S. Ct. 770, 787 (2011); see also Cullen v. Pinholster, 131 S. Ct. 1388, 1403
(2011).
      To save ink, paper, and time, we will assume, without deciding, that
Wines’s trial counsel performed deficiently, because even assuming Wines’s
counsel was ineffective, Wines suffered no prejudice.



                                        9
  Case: 10-30233       Document: 00511958153          Page: 10     Date Filed: 08/15/2012



                                       No. 10-30233

       At the outset, we should note that Wines was convicted of conspiracy to
possess with intent to distribute cocaine base (count 1)3 and conspiracy to
distribute marijuana (count 2).4        5
                                            Significantly, at the evidentiary hearing,
Wines offered no defense that would have addressed these convictions except to
the extent that they involved the September 30 arrests. For example, in the
indictment, the government alleged that the conspiracy involving Wines as well
as unnamed others started in 1998 and continued until 2002.                       Thus, the
conspiracy significantly preceded the discovery of nine ounces of crack cocaine
in Wines’s stepfather’s car and the co-conspirators’ consequent arrests in West
Monroe. In fact, Woodson testified at trial that Wines approached him at a gas
station to travel with him to Lake Providence and conduct a drug business.
Woodson further testified that he took at least nine trips to Lake Providence
with Wines to deal drugs. Wines does not purport to deny this drug conspiracy.
Wines’s proposed testimony only denies that he had traveled with Chappell to
Louisiana to sell drugs. Thus, even if Wines had testified, these convictions
would remain unchallenged.




       3
        Count 1 of the superseding indictment alleged that, “[b]eginning sometime in 1998 . . .
and continuing through September 30, 2002, in the Western District of Louisiana and
elsewhere, the defendant, KENNETH EARL WINES, a.k.a. ‘Crazy’, and other persons both
known and unknown . . . did knowingly and intentionally conspire and agree together to
distribute 50 grams or more of a mixture or substance containing a detectible amount of
cocaine base, otherwise known as crack cocaine.”
       4
        Count 2 of the superseding indictment alleged that, “[b]eginning sometime in 1998 . . .
and continuing through September 30, 2002, in the Western District of Louisiana and
elsewhere, the defendant, KENNETH EARL WINES, a.k.a. ‘Crazy’, and other persons both
known and unknown . . . did knowingly and intentionally conspire and agree together to
distribute a mixture or substance containing a detectable amount of marijuana.”
       5
         At sentencing, the district court determined that Wines should serve his sentences
for both of these counts concurrently with his conviction for possession with the intent to
distribute cocaine base (count 3); the only sentence Wines must serve consecutively is his
sentence for possession of a firearm in furtherance of a drug trafficking crime (count 4).

                                              10
  Case: 10-30233      Document: 00511958153        Page: 11    Date Filed: 08/15/2012



                                     No. 10-30233

      We now turn to examine Wines’s testimony regarding his convictions for
the September 30, 2002 possession with the intent to distribute cocaine base
conviction (count 3) and the possession of a firearm in furtherance of a drug
trafficking crime conviction (count 4).
      First, if he testified in his own defense at trial, Wines’s credibility would
have undergone a scorching cross-examination. Wines would have had to admit
that he was in the illicit drug business and that Woodson was his good friend
and associate, and he would have had to answer to his longtime drug dealing in
Lake Providence. Prosecutors would have introduced impeachment evidence of
his conviction for possession with intent to distribute cocaine. Although his
mother had already mentioned that he had previously been “busted” for cocaine,
the prosecutors would have been able to further attack his credibility by
introducing evidence of his conviction for the offense, the name of the offense,
and the sentence imposed. Although Wines argues that the cat was already out
of the bag regarding this conviction, he had a whole clowder of cats in the bag
that had yet to escape. In addition to Wines’s 1993 possession with intent to
distribute cocaine conviction, Wines’s pre-sentence report reveals other
convictions that show a pattern of his illegal behavior that would have been
available to challenge the credibility of his innocence plea, including: convictions
in 1999 and 2000 for unlawfully carrying a weapon, a 1997 conviction for
evading arrest, a 2001 conviction for possession of marijuana, and a 2000
conviction for assault.6 Wines claims that he was innocent of some of these
convictions, because “[s]omebody was using my identity.”                Given that the
process of convicting a defendant involves finger-printing, computer checks, and
other modern technology designed to authenticate the identity of a defendant,


      6
        Wines claims that he was not responsible for some of these convictions. During the
evidentiary hearing Wines claimed, “Somebody was using my identity. There’s a couple of
them I didn’t know nothing about.”

                                           11
  Case: 10-30233     Document: 00511958153      Page: 12    Date Filed: 08/15/2012



                                   No. 10-30233

Wines’s assertion that someone else was convicted under his name of the
offenses listed in his pre-sentence report would undoubtedly cast him as a
deceitful witness.
      Furthermore, outside of his bare assertions of innocence of these particular
charges, Wines’s account of events given at the evidentiary hearing was, in large
part, cumulative of the record already established at his trial; and it is clear that
failing to introduce cumulative evidence at trial does not give rise to Strickland
prejudice. See Wong v. Belmontes, 130 S. Ct. 383, 388 (2009); see also Nobles v.
Johnson, 127 F.3d 409, 419 (5th Cir. 1997). For example, most of the testimony
Wines says he would have given at the criminal trial focused on denying his
involvement with the house at 1651 Blue Meadow Street, where the drugs, guns
, and money – the physical evidence underlying his convictions and sentences –
were found; however, his mother, who, from all accounts was a normal citizen
with no criminal record, had already related the relevant parts of Wines’s
evidentiary hearing testimony regarding the Blue Meadow house: that Wines
had not lived there for six months, that Chappell and Woodson moved into the
home after Wines moved out, and that Wines was living with her at the time of
the Ouachita Parish arrests. She also corroborated Wines’s claim that he was
not cooking crack cocaine with Woodson the night before the arrests and instead
was attending a barbeque at her house. In other words, Wines’s alibi was
provided by a witness with fewer credibility issues, and the jury chose not to
believe the alibi. Ultimately, because Wines’s testimony would have been largely
cumulative, Wines’s defense was not prejudiced.
      Still further, Wines’s version of some events contradicts his mother’s
testimony at trial. Most significantly, Wines’s mother testified that she knew
all along that Wines would be traveling to Louisiana with Woodson for their
court appearance. On the other hand, Wines testified that he did not decide to
go with Woodson to Louisiana until after the barbeque. This inconsistency could

                                         12
  Case: 10-30233    Document: 00511958153       Page: 13   Date Filed: 08/15/2012



                                  No. 10-30233

easily have been exposed to be an attempt to distance himself from Woodson,
and it would have not only undermined his credibility but it would have
challenged his mother’s testimony as well.
      As we earlier noted, proving prejudice under Strickland is a heavy burden.
Indeed, as far as we can determine, no defendant in any court in the United
States has been able to prove Strickland prejudice on the basis of his counsel
advising him not to testify in his own defense at trial. Wines fails to establish
an exception to this record. We therefore conclude that, even if Wines’s counsel
was deficient in advising Wines not to testify at trial, his counsel’s error could
not be “so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Strickland, 466 U.S. at 687.
                                        IV.
      In sum, Wines has failed to prove a constitutional claim for ineffective
assistance of counsel, because he has not established prejudice under the
Strickland test. Because the district court committed no reversible error, the
district’s court’s judgment, denying Wines’s § 2255 motion is
                                                                      AFFIRMED.




                                        13
  Case: 10-30233    Document: 00511958153     Page: 14    Date Filed: 08/15/2012



                                  No. 10-30233

HIGGINBOTHAM, Circuit Judge, dissenting:
      Without context, defense counsel’s decision to not put Wines on the stand
is surely faultless because the introduction of a prior conviction will often take
the air from a defense. And, ordinarily, such a decision would not prejudice the
defendant. But here context is critical and alters the ordinary calculus in two
ways: the government’s case turned on the credibility of a multiple felon
testifying under a plea deal, and Wines’s prior criminal conduct was already
before the jury when the decision not to call him as a witness was made. All
turned on the jury choice between Wines’s account and that of his alleged
co-conspirator. Yet defense counsel did not put Wines on the stand to tell his
side. Given the posture of the trial and – significantly – the fact that Wines’s
account was both plausible and exculpatory, I am persuaded that counsel’s
failure to call Wines was not an objectively reasonable strategic decision and
that Wines was prejudiced. I therefore dissent.
                                       I.
                                       A.
      It is important that we set the stage for defense counsel’s controversial
decision. I turn to that narrative.
      Sometime after 3:00 a.m. on September 30, 2002, an Ouachita Parish
Sheriff’s deputy pulled over a pick-up truck that was being driven by Wines’s co-
defendant Marvin Chappell in Monroe, Louisiana. The deputy searched the
vehicle and discovered crack cocaine hidden in a speaker compartment.
      After the drugs were found, Chappell eventually agreed to lure the
suppliers of the drugs to a truck stop on Well Road by telling them that the
vehicle was broken down there. Chappell called “a girl named Felicia,” who in
turn made a three-way call to Wines and Bernice Woodson. Wines, Woodson,
and Aurora Shine arrived at the truck stop parking lot, where Chappell told
them about the supposed breakdown. Woodson, Wines, and Shine drove away.

                                       14
  Case: 10-30233     Document: 00511958153        Page: 15    Date Filed: 08/15/2012



                                    No. 10-30233

They stopped at a gas station, and Woodson got out, walked back to the truck
stop, and talked about the supposed breakdown to an undercover agent posing
as a mechanic. Woodson then started walking back to the gas station where he
had left Wines and Shine. Before he arrived there, however, deputies observed
Wines and Shine drive away. Woodson was then arrested, and agents who had
followed Wines and Shine arrested them as well. According to one of the officers,
Chappell did not appear to know Wines very well, but Chappell knew Woodson.
      Ouachita Parish Sheriff’s Office Deputy Bob Morris testified at trial that
Chappell knew Wines by the name of “Crazy” and that Chappell identified Wines
as his Dallas drug supplier. However, Morris also testified that after Chappell
named “Crazy,” it was some time before Morris was able “to tie Kenneth Wines
with the name ‘Crazy.’”1 In other words, contrary to the majority’s summary of
Morris’s testimony, it is not clear whether Chappell himself ever linked Wines
to the name “Crazy.” What is clear from the trial testimony is that Bernice
Woodson identified Wines, by name, as the supplier.
      Woodson told agents where Wines’s house was located in Dallas and that
Wines had several guns in the house. Based on the information from Woodson,
Dallas County Sheriff’s Department officers searched a residence at 1651 Blue
Meadow in Dallas, seizing crack cocaine, marijuana, two digital scales, several
guns, and over $31,000 in cash. They also found a rent receipt made out to
“Tyrone Davis.” The owner of the residence, Lorene Smith, testified at trial that
she had leased the residence to Tyrone Davis, and she identified Wines as
Tyrone Davis.




      1
         No one at trial testified based on personal knowledge that Wines’s nickname was
“Crazy.” According to the trial transcript, Woodson testified that Wines’s nickname was
“Kayla,” probably an incorrect transcription of “K-Love.”

                                          15
  Case: 10-30233         Document: 00511958153         Page: 16    Date Filed: 08/15/2012



                                        No. 10-30233

                                              B.
       The record offers two competing but plausible accounts for Wines’s
presence in the car with Woodson and Shine the day of their arrests.
       According to Woodson’s account, the night before the arrests, Woodson had
watched Wines cook crack cocaine in Wines’s kitchen in the house on Blue
Meadow. Woodson and Wines then hid the crack cocaine in the speaker box of
the truck driven by Chappell. Wines had recruited Woodson to drive him to Lake
Providence, sell drugs with him while they were there, then drive Wines back to
Dallas. They took a total of six, or maybe nine trips (Woodson’s testimony at
trial was unclear), some of which also included Chappell. Although Woodson
had once been the “big man,” he was now working for Wines. According to
Woodson’s story, he and Wines were traveling together after a court appearance
the next morning so that Wines could take Woodson to Lake Providence “to meet
up with Chappell to celebrate.”2
       According to Wines’s account,3 Wines and his “baby mom” had lived in the
residence on Blue Meadow, but they eventually separated and moved out.
Woodson, and not Wines, lived there for the eight or nine months preceding the
arrests, and Wines had no longer had any connection to the house. On the
evening before his arrest, Wines was at a barbecue at his mother’s house at 9499
Brewster in Dallas, where he was living at the time. The barbecue ended at
around 2:00 a.m., and about an hour later Woodson showed up and told him he
wanted to ride with Wines to a court appearance they both had in Monroe. As
they were about to leave the courthouse in Monroe later that morning, Wines got


       2
          In its summary of Woodson’s testimony, the majority states that “Wines and Woodson
. . . both had a mandatory criminal court appearance in Monroe, Louisiana at ten o’clock . . .,
apparently concerning a marijuana charge in the area, which included Lake Providence.” The
majority attempts to revise the record. Woodson did not say that the court appearance was
“criminal,” nor did he say that it concerned a “marijuana charge.”
       3
           As related at the evidentiary hearing on his § 2255 motion.

                                               16
  Case: 10-30233   Document: 00511958153     Page: 17   Date Filed: 08/15/2012



                                 No. 10-30233

a phone call from someone who asked for Woodson. After talking to the person
on the phone, Woodson told Wines that he wanted to go by Well Road in West
Monroe on the way back to help a friend. Wines said that wasn’t a problem.
      At Well Road, Woodson got out to talk to his friend and then came back
and said that Wines needed to drive him to a “part house.” They drove down the
street but did not see the part house. At that point, Wines said that he had to
pick up his son from school and didn’t have time to be driving around. Woodson
asked Wines to take Woodson’s girlfriend, Shine, back to Dallas. Wines did not
make any statements to police after his arrest because he “wasn’t aware of what
was going on” and because he was “lost.” He did not know what Chappell had
in the pick-up truck, and he did not participate in helping Chappell get to the
location where Chappell was arrested.
                                     ***
      This case turned on the jury’s assessment of these two accounts, and the
jury only heard one of them. Bernice Woodson’s testimony was the crux of the
government’s case – the only evidence linking Wines to the drugs in the truck
driven by Chappell – and other than the law enforcement personnel and the
owner of the house on Blue Meadow, Woodson was the government’s sole
witness. Woodson testified pursuant to a plea agreement, in exchange for the
dismissal of some charges and the possibility of the government filing a motion
for a downward departure at sentencing.
      The defense called just two witnesses, neither of them Wines. One of these
witnesses was Chappell, who invoked his Fifth Amendment right against self-
incrimination. The other defense witness was Wines’s mother, Erma Wines.
      Mrs. Wines testified that Wines had been living with her since March
2002; that only Chappell and Woodson lived in the residence on Blue Meadow;
and that Wines had been at her house for a barbecue on the night before the
incident until 2:30 a.m., when he left for Monroe. When she was asked during

                                      17
  Case: 10-30233       Document: 00511958153         Page: 18     Date Filed: 08/15/2012



                                      No. 10-30233

direct examination how she had met Woodson, she testified that she had met
him in 1993 when Wines “got his . . . first case.” She said Woodson gave Wines
“a sack” and told him to “run with it and put it up.” Wines was then arrested
and sent to jail.        On cross-examination, when asked about Woodson’s
involvement in drugs, she testified that in 1992 or 1993 when Wines got “busted”
at the age of 17 or 18, Woodson gave him drugs and told him to run with them
during a drug bust. She further testified that Wines had been sent to jail and
that the drug involved was cocaine.
       The jury convicted Wines on all counts, and the conviction was affirmed
on direct appeal.
                                            C.
       Wines subsequently filed a pro se § 2255 motion in which he argued that
his counsel was ineffective for (1) failing to investigate Chappell; (2) failing to
subpoena certain witnesses; (3) failing to question the fact that Woodson gave
a written statement despite being unable to read or write; (4) failing to question
the fact that all of the evidence against Wines was provided by unindicted co-
conspirator Shine; (5) failing to discuss Wines’s case with him or pursue
anything that Wines requested; and (6) failing to call Wines to testify even
though Wines instructed counsel to do so. The district court granted Wines’s
request for an evidentiary hearing regarding, but not limited to, his claim that
his counsel was ineffective for failing to allow him to testify at trial, and it
appointed the Federal Public Defender to represent Wines at the hearing.
       At the hearing, Wines told his version of the events leading up to his
arrest, testifying to his lack of involvement in the alleged drug conspiracy.4 He


       4
         In its summary of Wines’s testimony, the majority again rewrites the record to imply
a closer connection between Wines and Chappell than Wines acknowledged, stating: “Wines
also denied knowing that Chappell had drugs in the car and denied assisting Chappell by
loading the drugs into Wines’s stepfather’s Expedition.” On redirect, Wines’s counsel asked
whether he knew what Chappell had in the vehicle and whether he had helped Chappell. To

                                             18
  Case: 10-30233       Document: 00511958153          Page: 19     Date Filed: 08/15/2012



                                       No. 10-30233

noted that his nickname was “K-Love,” not “Crazy,” and stated that Tyrone
Davis was not his alias. Wines also gave his account of his interactions with
counsel before, during, and after trial. William Caldwell IV was appointed as
Wines’s trial counsel. According to Wines, after Caldwell was appointed, they
talked about his case twice. Wines said that Caldwell “never just talked about
the direct trial,” but that Caldwell “asked [Wines] a few questions.” He never
talked to Caldwell about the specifics of his testimony, although he did tell
Caldwell about the facts surrounding his arrest.
       Wines testified that when he talked to Caldwell about testifying, counsel
told him that the Government would bring up his prior convictions. Wines stated
that although the PSR outlined several convictions, “a couple” of the offenses
were committed by someone else using his identity and that he was convicted in
1992 or 1993 for possession of drugs with intent to distribute. Wines said that
he asked his counsel after all of the witnesses had testified whether counsel was
going to allow him to take the stand, and counsel responded that he was
“comfortable” with the way things were progressing at trial. Wines was asked
why he didn’t testify if he wanted to testify. He said:




both questions, Wines replied simply, “No, sir.” In a different portion of his testimony, on
direct examination by his counsel, Wines said that he now knew something about the vehicle
Chappell was driving at the time of his arrest:

       Q. Mr. Chappel was driving the vehicle that was supposed to be broken down, is that
       right?
       A. Yes, sir.
       Q. Do you know anything about that vehicle?
       A. Yes. That's my step dad, my step daddy -- I guess Mr. Chappel my step daddy’s
       friend somehow. But -- that’s my step dad vehicle.
       Q. Do you know why Mr. Chappel had the vehicle?
       A. Because he’s a mechanic. That’s what I later found out, as far as I know.

Incidentally, the government has not argued that the latter details bear on Wines’s ineffective
assistance claim.

                                              19
  Case: 10-30233    Document: 00511958153      Page: 20   Date Filed: 08/15/2012



                                  No. 10-30233

             I asked him. I wanted to testify. I told him – I told him on –I
      told him more than once. But he was telling me about my past. And
      I was like, “At this time, my past really don’t make a difference.”
             “My mom” – I knew she was going to tell the truth. That’s just
      how she is. “My past is already really – it’s already known.”

Wines also stated during the hearing that he was ready to testify at the time of
trial and that he would have testified consistently with his hearing testimony.
If he had testified at trial, he would have told the jury that he was innocent.
      Caldwell, Wines’s trial counsel, testified that while he did not have “an
independent recollection” of going to meet with Wines, he was sure he did.
Caldwell did not recall any conversations that he had with Wines during trial.
With regard to the possibility of Wines testifying, Caldwell stated, “I certainly
know that at some point we probably discussed it and I probably advised him
against it.” Caldwell did not recall a conversation where Wines told him he
wanted or did not want to testify, but he did know that he had never told
anyone, “You cannot testify,” or “You must testify.” Caldwell explained that he
has “found that individuals that tend to testify, a lot of times end up hanging
themselves.” He stated that if Wines had been called to testify, the Government
would have quickly pointed out or asked him about his prior conviction of a drug-
related charge. Additionally, he noted that Wines had not made any statements
to police, so there was no need for him to testify to explain any such statements.
      The magistrate judge (“MJ”) recommended that Wines’s § 2255 motion be
denied. The MJ determined, inter alia, that Wines had not shown that his
counsel was ineffective for failing to call him to testify. The MJ found that other
than the self-serving assertions of Wines and Caldwell, the record was silent as
to whether Caldwell prevented Wines from testifying, and thus Wines had not
shown that counsel overrode his decision to testify. The MJ further determined
that Wines had not overcome the strong presumption that his counsel’s decision


                                        20
  Case: 10-30233      Document: 00511958153         Page: 21     Date Filed: 08/15/2012



                                      No. 10-30233

not to call him to testify was the result of sound trial strategy because formal
evidence of Wines’s prior conviction and a jury instruction reminding the jury of
the conviction would have come in if Wines had testified at trial. The MJ also
found that even if counsel’s decision was not sound trial strategy, Wines had not
shown that he was prejudiced by counsel’s failure to call Wines as a witness.
       The district court adopted the MJ’s Report and Recommendation with the
exception of the MJ’s determination that “if Wines had testified, the government
could have entered formal evidence of Wines’ [prior] conviction [for possession
with intent to deliver cocaine] into the record under Fed. R. Evid. 609(a)(1) and
would have been entitled to jury instructions reminding the jury of Wines’
prior conviction” and that “Wines’ credibility would have been impeached by
evidence of his prior conviction if he had testified at trial.”5 The district court
noted that it was not clear from the record whether Wines’s release from prison
for the prior conviction was within ten years of his trial in this case. Thus, to
introduce the prior conviction for impeachment purposes, the government would
have had to present the court with evidence that Wines’ release from prison had
occurred less than ten years before, or the government would have had to
convince the court that the probative value of the conviction substantially
outweighed its prejudicial effect. However, the district court concluded that
Wines’s prior conviction probably would have been admitted, had Wines
testified.6
       The district court denied Wines’s petition and did not grant a certificate
of appealability (“COA”). Wines then sought a COA from this court. We


       5
        United States v. Wines, No. 03-30013-01, 2010 WL 114225, at *1 (W.D. La. Jan. 11,
2010) (“Wines II”).
       6
         Although Wines’s PSR listed additional prior convictions for minor crimes, the
government does not suggest, and the district court did not find, that any of the alleged
convictions other than Wines’s 1993 drug conviction would have been introduced at trial. The
majority’s suggestion to the contrary is without support in the record.

                                            21
  Case: 10-30233          Document: 00511958153         Page: 22       Date Filed: 08/15/2012



                                           No. 10-30233

concluded that Wines had not shown that the record supported a determination
that his counsel prevented him from testifying at trial, but that he had shown
that reasonable jurists would find debatable the district court’s determination
that his counsel was not ineffective for advising him not to testify at trial. We
granted a COA on the issue of whether Wines’s attorney was ineffective for
advising him not to testify at trial.
                                               II.
       In the 28 U.S.C. § 2255 context, this court reviews a district court’s factual
findings for clear error and its legal conclusions de novo.7 Ineffective assistance
of counsel claims present mixed questions of law and fact,8 and we therefore
review de novo the district court’s resolution of Wines’s claim.9
       Under Strickland, the standard for ineffective assistance of counsel claims
has two prongs.           First, the defendant must establish that his counsel’s
performance was deficient.10 “The proper measure of attorney performance [is]
. . . reasonableness under prevailing professional norms.”11                      Second, the
defendant must demonstrate that his counsel’s deficient performance prejudiced
the defense.12 To do so, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the




       7
           United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008).
       8
         See Strickland v. Washington, 466 U.S. 668, 698 (1984) (“[B]oth the performance and
prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.”).
       9
           United States v. Bass, 310 F.3d 321, 325 (5th Cir. 2002).
       10
            Strickland, 466 U.S. at 687.
       11
            Id. at 688.
       12
            Id. at 687.

                                                22
  Case: 10-30233          Document: 00511958153       Page: 23     Date Filed: 08/15/2012



                                       No. 10-30233

proceeding would have been different,” with “a reasonable probability” defined
as “a probability sufficient to undermine confidence in the outcome” of the trial.13
                                             III.
                                              A.
       Under the first Strickland prong, this court must consider “the extent to
which [defense counsel’s] decisions were governed by a reasoned trial strategy.”14
“[T]he decision whether to put a Defendant on the stand is a ‘judgment call’
which should not easily be condemned with the benefit of hindsight.”15 Courts
have rejected ineffective assistance of counsel claims based on failure to call the
defendant as a witness where counsel reasonably thought that the defendant
“might do himself more harm than good,”16 and where the testimony would be
merely cumulative.17 At the same time, a “crucial distinction between strategic



       13
            Id. at 694.
       14
            Richards v. Quarterman, 566 F.3d 553, 566 (5th Cir. 2009).
       15
         Robison v. Johnson, 151 F.3d 256, 261 (5th Cir. 1998) (quotation marks and citation
omitted); see also Pape v. Thaler, 645 F.3d 281, 291 (5th Cir. 2011) (“[C]ounsel’s decisions
regarding examination and presentation of witnesses and testimony . . . fall within [the]
category of trial strategy[,] which enjoys a strong presumption of effectiveness.”).
       16
         Hollenbeck v. Estelle, 672 F.2d 451, 454 (5th Cir. 1982) (“It was not unreasonable for
counsel to conclude that Hollenbeck might do himself more harm than good by attempting to
explain how six shots were fired in self-defense.”); see also Sayre v. Anderson, 238 F.3d 631,
635 (5th Cir. 2001) (finding that counsel made a reasonable strategic decision not to call the
defendant as a witness where the defendant’s testimony in an earlier trial had been highly
prejudicial to him); Schmidt v. United States, 173 F.3d 846,1999 WL 220096, at *1 (2d Cir.
1999) (unpublished table decision) (holding that “counsel had a sound strategic reason for
deciding not to call [a witness] to the stand, where “[the witness’s] testimony, if consistent
with the testimony he gave at [the defendant’s] state trial . . . would have tended to
undermine, rather than support, [the defendant’s] sole defense”).
       17
           Richards, 566 F.3d at 568 (“[C]umulative testimony generally cannot be the basis
of an ineffective assistance of counsel claim.”); Frederick v. Kyler, 100 F. App’x 872, 874 (3d
Cir. 2004) (unpublished) (per curiam) (finding that petitioner failed to satisfy the first
Strickland prong in part because “[his] testimony would not have brought new information to
the jury’s attention”).

                                              23
  Case: 10-30233         Document: 00511958153         Page: 24    Date Filed: 08/15/2012



                                        No. 10-30233

judgment calls and plain omissions has echoed in the judgments of this court.”18
On the facts of this case, I am persuaded that the district court erred in its
conclusion that counsel’s failure to call the defendant to testify represented
sound trial strategy.
       At the evidentiary hearing, counsel gave two reasons for his failure to call
Wines as a witness. First, counsel stated that “in [his] practice . . . individuals
that tend to testify, a lot of times end up hanging themselves.” However, he did
not explain why he expected that Wines specifically would “end up hanging
[himself].” Second, he noted that “[a] lot of times [a defendant’s testimony]
provides the state with the ammunition they need to convict someone” and
suggested that in Wines’s case “his prior conviction for a drug-related charge”
would be that ammunition.
       Advising a defendant in a drug trafficking case not to testify in order to
prevent the government from cross-examining the defendant about an earlier
drug-related conviction ordinarily “falls within the limits of reasonable trial
strategy.”19 Were this an ordinary case, counsel’s decision not to call Wines on
that basis would most likely fall within the bounds of reasonable trial strategy.
This case presented a unique scenario, however, in that the jury learned of
Wines’s earlier drug-related conviction from Wines’s mother. Even if the risk
that the jury would learn of Wines’s prior conviction initially outweighed any
possible benefit that might come from Wines’s testifying, that risk was moot once




       18
            Loyd v. Whitley, 977 F.2d 149, 158 (5th Cir. 1992).
       19
          United States v. Orr, 636 F.3d 944, 955 (8th Cir. 2011) (quotation marks and citation
omitted); see also United States v. Guerrero, 157 F. App’x 995, 996 (9th Cir. 2005)
(unpublished) (finding that it was objectively reasonable for counsel to advise the defendant
not to testify “to avoid opening the door to impeachment with prejudicial evidence that had
been previously suppressed”).

                                               24
  Case: 10-30233          Document: 00511958153          Page: 25      Date Filed: 08/15/2012



                                          No. 10-30233

Wines’s mother described the prior drug offense during her testimony.20 Counsel
did not provide any explanation for his failure to reconsider the possibility of
Wines testifying after Wines’s mother provided the government with that
ammunition.21
       Counsel’s failure to weigh the benefits versus risks of Wines’s testifying
is inexplicable given that counsel apparently anticipated that Wines’s prior
conviction might be revealed during Mrs. Wines’s testimony. It would not have
imposed a large burden on counsel to inquire into the specifics of Wines’s
potential testimony or prepare him to testify. If counsel had done so, he would
have been in a position to make a strategic decision whether to call Wines to the
stand after Wines’s mother – as anticipated – informed the jury of Wines’s
criminal past.         The record reveals no basis on which counsel could have
concluded such preparation would be “fruitless” or “harmful.”22
       For those and at least four other reasons, I agree with the majority that
counsel’s failure to call Wines after Wines’s mother revealed the past conviction




       20
         Cf. El-Tabech v. Hopkins, 997 F.2d 386, 390 (8th Cir. 1993) (finding that counsel’s
decision not to call the defendant to the stand was not an unreasonable strategic decision in
part because it “[was] likely that additional inculpatory evidence would have been admitted
had [the defendant] testified” (emphasis added)).
       21
         Although counsel identified only those two reasons for his failure to call Wines, he
insinuated that there might be others, prefacing his remarks with the comment, “Well – some
things necessarily are attorney-client privilege.” But it is widely recognized that “[w]hen a
habeas petitioner claims that he received ineffective assistance of counsel, he puts
communications between himself and his attorney directly in issue, and thus by implication
waives the attorney-client privilege with respect to those communications.” United States v.
Pinson, 584 F.3d 972, 977-78 (10th Cir. 2009) (citing, inter alia, Laughner v. United States, 373
F.2d 326, 327 (5th Cir. 1967)). The government made no effort to probe counsel further
regarding relevant communications, and it does not argue on appeal that counsel had objective
reasons for failing to call Wines beyond those revealed by the current record.
       22
            Harrington v. Richter, 131 S. Ct. 770, 789 (2011) (citing Strickland, 466 U.S. at 691).

                                                 25
  Case: 10-30233        Document: 00511958153          Page: 26     Date Filed: 08/15/2012



                                        No. 10-30233

was not a reasoned decision that served “a calculated trial strategy.”23 First,
while a decision not to call a witness, including the defendant, is generally a
strategic judgment call, counsel cannot hide behind the mantle of trial strategy
if the failure to call a witness reflects a failure to prepare.24 At the evidentiary
hearing before the MJ, counsel could not specifically “recall [he and Wines] ever
talking about [Wines] getting on the stand and testifying.” Although counsel
stated “that at some point [they] probably discussed it and [he] probably advised
Wines against it,” he did not indicate that they ever discussed the specifics of
Wines’s potential testimony. Wines stated that he and counsel never rehearsed
his testimony. Counsel did not state that he at any point weighed the potential
risks of Wines testifying against potential benefits.25
       Second, as summarized by counsel, “[t]he government’s theory was
Kenneth Wines was a big-time drug dealer and these guys worked for Kenneth
Wines.” Counsel explained that his “theory of defense”was “to refute the
government’s theory,” and the record does not suggest that counsel had any
indication that testimony from Wines would undermine this defense.
       Third, Wines’s testimony would not have been cumulative.26 At trial, the
defense called only two witnesses, Wines’s mother and Chappell. Chappell
asserted his Fifth Amendment privilege and refused to answer defense counsel’s



       23
         Anderson v. Johnson, 338 F.3d 382, 393 (5th Cir. 2003) (quotation marks omitted)
(quoting Nealy v. Cabana, 764 F.2d 1173, 1178 (5th Cir. 1985)).
       24
            See id.
       25
          See, e.g., Sayre v. Anderson, 238 F.3d 631, 635 (5th Cir. 2001) (concluding that it was
objectively reasonable for trial counsel to decide that “the potential risks of [the defendant]
testifying outweighed the potential benefits”).
       26
         See Richards v. Quarterman, 566 F.3d 553, 568 (5th Cir. 2009) (“[C]umulative
testimony generally cannot be the basis of an ineffective assistance of counsel claim. The fact
that there is ‘some overlap’ among the excluded testimony and what came out [at] trial will
not necessarily preclude relief, however.” (internal citations omitted)).

                                               26
  Case: 10-30233       Document: 00511958153         Page: 27     Date Filed: 08/15/2012



                                       No. 10-30233

questions about the alleged offenses. While Mrs. Wines provided her son with
an alibi for the night before his arrest and testified that he was no longer living
at the house on Blue Meadow, her testimony, taken as true, did not rule out the
possibility that Wines still had some connection to the house or that Woodson
and Chappell worked for Wines in a drug trafficking conspiracy.
       Fourth, nothing in the record suggests that Caldwell had reason to
conclude that Wines’s version of the facts would have fallen apart on cross-
examination or that Wines’s testimony would have been self-defeating.27
       The government argues that counsel’s failure to call Wines as a witness
was an objectively reasonable strategic decision on two grounds. First, the
government maintains that regardless of Wines’s mother’s comments during her
testimony, it would have been reasonable for counsel to advise Wines not to
testify on the basis of his prior conviction. The government argues that Wines’s
mother “never mentioned a specific conviction,” and that even though “the
defendant’s prior involvement with drugs was mentioned, there was no evidence
of an actual specific conviction.” We are unconvinced. While Mrs. Wines never
stated explicitly that her son had a “prior drug conviction,” her testimony made
clear that Wines committed a prior drug offense, that Wines was “busted” for
that offense, that the offense involved cocaine, and that Wines went to jail for
the offense. Further, counsel’s concern that the jury would learn about the
offense was not limited to a concern that the jury might learn about the “actual
specific conviction,” as opposed to Wines’s past involvement in a drug-related
crime. Indeed, counsel hoped that Wines’s mother would not mention the prior



       27
          See, e.g., United States v. Harris, 408 F.3d 186, 192 (5th Cir. 2005) (finding that
counsel’s failure to call the defendant to the stand was an objectively reasonable strategic
decision in part because “[the defendant’s] track record of testifying indicated he would make
a remarkably bad witness for himself”); Sayre, 238 F.3d at 635 (concluding that “a reasonable
attorney, considering [the defendant’s] prior performance on the stand, could have decided
that the potential risks of [the defendant] testifying outweighed the potential benefits”).

                                             27
   Case: 10-30233       Document: 00511958153           Page: 28      Date Filed: 08/15/2012



                                         No. 10-30233

offense because he believed that “[Wines’s] prior criminal conduct would not be
helpful in front of [the] jury” (emphasis added).28 The government does not
explain why a reasonable attorney would draw a distinction between the
information conveyed by Wines’s mother and “evidence of an actual specific
conviction” in this context.
       Second, the government argues that counsel’s strategy not to call Wines
as a witness was reasonable because Wines’s “description of what he would have
testified to at trial was not necessarily consistent with the testimony of
witnesses who had no motivation to contradict the defendant.” While Wines’s
description of what he would have testified to at trial will be relevant to the
prejudice inquiry – and I will address it below – such evidence only bears on the
first Strickland prong insofar as it indicates what counsel knew at the time. The
government notes (1) a minor inconsistency between Wines’s testimony at the
evidentiary hearing in 2010 and his mother’s testimony at trial in 2004, and
(2) a conflict between Wines’s testimony and Lorene Smith’s testimony. With
regard to the conflict between Wines’s ultimate testimony at the evidentiary
hearing and his mother’s testimony at trial, there is no evidence that counsel
reviewed Wines’s potential testimony with him or that counsel was aware of the
alleged inconsistency between Wines’s account and his mother’s.




       28
          In a similar vein, a section of the MJ’s Report and Recommendation that was adopted
by the district court suggests that it was objectively reasonable for counsel to fail to call Wines
as a witness to avoid the risk of the government entering formal evidence of Wines’s prior
conviction into the record because if the government had done so, “[the government] would
have been entitled to jury instructions reminding the jury of Wines’s prior conviction.” United
States v. Wines (“Wines I”), No. CR 03-30013-01, 2009 WL 5275839, at *6 (W.D. La. Oct. 26,
2009), adopted in relevant part by Wines II, 2010 WL 114225 (W.D. La. Jan. 11, 2010). That
analysis turns on its head the function of the cautionary instruction. We presume that juries
follow the trial court’s instructions. See United States v. West, 22 F.3d 586, 593 (5th Cir. 1994)
(citing Zafiro v. United States, 506 U.S. 534, 540 (1993)).


                                               28
  Case: 10-30233       Document: 00511958153         Page: 29     Date Filed: 08/15/2012



                                       No. 10-30233

       The conflict between Wines’s account and Smith’s testimony is that Smith
identified Wines as the “Tyrone Davis” to whom she rented the house on Blue
Meadow, and Wines claims he has never used the alias “Tyrone Davis.”
Counsel’s notes reflect that he was aware that Wines denied using the alias
“Tyrone Davis.” However, the jury already had to contend with conflicting
evidence on this point, since Mrs. Wines testified that it was Wines’s girlfriend
who rented the residence on Blue Meadow and that Mrs. Wines “was with her”
when she rented the residence. Moreover, since the defense theory was that
Wines had lived at the residence on Blue Meadow previously, but had moved out
several months before September 29, 2002, the question of whether Wines was
or was not the Tyrone Davis who had originally rented the residence was not
especially material. Contrary to the government’s suggestion, there is no basis
to conclude that the line “(?) Explain away Tyrone Davis?” in trial counsel’s early
notes on the case is evidence that counsel’s advice to Wines not to testify was an
objectively reasonable strategic decision.29
       To provide constitutionally effective assistance, defense counsel must
make strategic decisions based on the facts of the particular case and the
characteristics of the particular defendant.30 Moreover, counsel must not only
formulate a reasonable trial strategy at the outset of the trial, but also revise
that original strategy as necessary during the trial when assumptions
underlying counsel’s initial judgments prove wrong.31 In sum, defense counsel


       29
          Lorene Smith’s ultimate testimony was inconsistent on several key points, which is
perhaps why the government discusses the “Tyrone Davis” issue only briefly in addressing the
first Strickland prong and does not even mention Smith’s testimony in connection with the
prejudice prong.
       30
          See Strickland, 466 U.S. at 690 (“[A] court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.” (emphasis added)).
       31
            See id.

                                             29
  Case: 10-30233         Document: 00511958153         Page: 30     Date Filed: 08/15/2012



                                          No. 10-30233

may not choose a trial strategy by default. Because the record reveals no
objectively reasonable ground for not calling Wines as a witness after the jury
learned of his prior drug offense, I conclude Wines has satisfied the first prong
of the Strickland standard.
                                               B.
      To establish prejudice under the second prong of the Strickland standard,
a defendant must show that his counsel’s unprofessional errors “deprive[d] the
defendant of a fair trial, a trial whose result is reliable.”32 When the defendant
is challenging his conviction, “the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.”33 As the Supreme Court recently explained, this is a
difficult standard to meet:
      Strickland asks whether it is “reasonably likely” the result would
      have been different. . . . This does not require a showing that
      counsel’s actions “more likely than not altered the outcome,” but the
      difference between Strickland’s prejudice standard and a
      more-probable-than-not standard is slight and matters “only in the
      rarest case.” . . . The likelihood of a different result must be
      substantial, not just conceivable.34

“[A] verdict or conclusion only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming record support.”35
      The MJ concluded that Wines could not demonstrate a reasonable
probability that his testimony would have affected the outcome at trial for three
reasons: (1) Wines’s mother’s testimony rebutted Woodson’s testimony on the
same points for which Wines claimed that his testimony was necessary; (2)

      32
           Id. at 687.
      33
           Id. at 695.
      34
           Harrington v. Richter, 131 S. Ct. 770, 791 (2011) (citations omitted).
      35
           Strickland, 466 U.S. at 696.

                                               30
  Case: 10-30233       Document: 00511958153         Page: 31     Date Filed: 08/15/2012



                                       No. 10-30233

Wines’s proposed testimony was “occasionally” inconsistent with his mother’s
testimony, and thus his testimony at trial might have weakened his case; and
(3) Wines’s credibility would have been impeached by his prior conviction if he
had been called to the stand. In addition to the reasons cited by the MJ, the
government suggests that “cross-examination by [defense counsel] of Woodson
at trial did more to rebut Woodson’s testimony concerning the overall conspiracy
than any of the defendant’s comments at the evidentiary hearing.” These
arguments do not withstand scrutiny.
       First, while the record suggests that Wines’s testimony would have
overlapped with his mother’s on some key points, Wines’s description of the
testimony he would have offered indicates that it would not have been merely
cumulative. Wines indicated at the evidentiary hearing that he would have
testified to his lack of involvement in the conspiracy – specifically that he had
no connection to the site where the drugs and weapons that formed the basis for
the charges against him were found and that he in no way participated in
helping Chappell transport the drugs to Well Road.36                  In addition, Wines
confirmed that he had indicated in certain letters referenced by the government
that he was innocent and that the position he took in the letters was still his
position. In those letters, Wines repeatedly affirmed his lack of involvement in
the conspiracy, noting that he “didn’t have anything to do with this crime.”
       Wines’s testimony regarding his lack of connection to the house on Blue
Meadow and lack of involvement in the conspiracy would have been especially
important because the government argued to the jury that Mrs. Wines’s
testimony that she did not allow guns or drugs in her house in fact demonstrated



       36
          The facts here are distinguishable, for instance, from those of Harris, in which the
defendant “would not have offered any direct evidence concerning the [incident] outside of the
evidence already adduced from [another witness’s] testimony and cross-examination of the
government’s witnesses.” Harris, 408 F.3d at 192-93.

                                             31
  Case: 10-30233        Document: 00511958153        Page: 32    Date Filed: 08/15/2012



                                       No. 10-30233

“why [Wines] need[ed] the stash house” at 1651 Blue Meadow. This court
previously has held that “counsel prejudices his client’s defense when counsel
fails to call a witness who is central to establishing the defense’s theory-of-the-
case, and the jury is thereby allowed to draw a negative inference from that
witness’s absence.”37 Beyond the Tyrone Davis receipt, there was no physical
evidence connecting Wines to the house on Blue Meadow – and no physical
evidence at all connecting him to the house during the time period when
Chappell and Woodson were using it. Although counsel testified at the
evidentiary hearing that he thought the prosecution’s case was weak and that
he could succeed in discrediting Woodson, the jury heard no evidence that
actually rebutted the central points of Woodson’s testimony.
      Wines’s testimony was central because the case came down to his word
versus Woodson’s, and the jury only heard from Woodson, who testified pursuant
to a plea deal. Though Woodson had a more extensive criminal history than
Wines and his testimony was riddled with inconsistencies, because Wines did not
testify, the jury heard no direct evidence contradicting the central elements of
Woodson’s account. The government’s suggestion that defense counsel’s cross-
examination of Woodson served as a more effective rebuttal of Woodson’s account
than Wines’s testimony would have is without merit.                     The district court
emphasized in its instructions to the jury that “statements, objections, or
arguments made by lawyers are not evidence.” While the cross-examination
may have given the jury reason to be skeptical of Woodson’s account, counsel’s
questions did not, by themselves, rebut that account.
      Second, the inconsistency between Wines’s testimony at the evidentiary
hearing and his mother’s testimony at trial was on a minor, peripheral point.
The arguable inconsistency between Wines’s testimony and his mother’s


      37
           Harrison v. Quarterman, 496 F.3d 419, 427 (5th Cir. 2007).

                                             32
  Case: 10-30233          Document: 00511958153        Page: 33     Date Filed: 08/15/2012



                                         No. 10-30233

testimony is that Mrs. Wines stated that Woodson and Wines had planned to
travel together to Monroe for the court appearance on September 30, 2002, and
Wines suggested that it was a last-minute decision. This was not one of the key
issues of the case. Moreover, as Wines points out in his brief, effective defense
counsel could argue that an occasional inconsistency between the testimony of
two witnesses indicates an absence of fabrication. Unlike the defendant in
United States v. Araujo,38 for instance, Wines has not proposed testimony that
“appear[s] incredible.”39
       Third, although Wines’s credibility could have been attacked on the basis
of his prior conviction, Woodson’s credibility would have been attacked on the
same ground, and ultimately, the jury would be weighing Wines’s credibility
against Woodson’s. The jury would have faced credibility choices between two
felons, both testifying to avoid time in prison, not a felon and a police officer.
This distinguishes the case from United States v. Mullins,40 which the
government cites in support of its claim that counsel’s failure to call Wines as a
witness did not prejudice the defense. In Mullins, the court found that “a denial
by Mullins from the stand would [have] come at a high price” because “[i]t would
have juxtapose[d] a police officer whose account [was] supported by [the
defendant’s] signed statement with a felon with a large incentive to lie.”41
Moreover, “counsel [in Mullins] offered the testimony of several other witnesses
to challenge the police officer’s testimony and support Mullins’s story.”42 Here,

       38
            77 F. App’x 276 (5th Cir. 2003) (unpublished) (per curiam).
       39
         Id. at 279 (finding that counsel’s failure to call the defendant to testify did not
prejudice him where “aspects of [the defendant’s] proposed testimony appear[ed] incredible
and would have been subject to vigorous and, in all likelihood, damaging cross-examination”).
       40
            315 F.3d 449 (5th Cir. 2002).
       41
            Id. at 456.
       42
            Id. (emphasis added).

                                               33
  Case: 10-30233         Document: 00511958153         Page: 34     Date Filed: 08/15/2012



                                         No. 10-30233

beyond Woodson, no witnesses – let alone law enforcement witnesses – offered
direct evidence of Wines’s involvement in the conspiracy. And Wines’s mother
was the sole witness who testified for the defense. The majority’s contention
that “Wines would have had to admit that he was in the illicit drug business” is
inexplicable.
       Fourth, if evidence of Wines’s prior conviction had been admitted under
Rule 609, the court would have issued a cautionary instruction to members of
the jury, warning them that the prior conviction should be considered only in
relation to Wines’s credibility as a witness and not as proof that Wines was
guilty of the current charges.43 Because the jury did not receive a cautionary
instruction after Mrs. Wines testified about her son’s prior conviction, that
instruction likely would have strengthened the defense’s case.
       Fifth, in his closing statement, defense counsel acknowledged that the
government could impeach Mrs. Wines’s by saying, “Well, that’s because that’s
this boy’s mama.” He nonetheless asked the jury to believe that Mrs. Wines
“didn’t have any reason to lie,” while leaving her testimony unsupported. On
rebuttal, the government forcefully argued that the fact that Mrs. Wines was the
defendant’s mother gave her a very good reason to lie.44
       Finally, this court has recited the everyman observation that “where the
very point of a trial is to determine whether an individual was involved in
criminal activity, the testimony of the individual himself must be considered of
prime importance.”45 Here, there was no question at trial that criminal activity

       43
            See Fifth Circuit Pattern Jury Instructions (Criminal) 1.11 (2001).
       44
          The prosecutor stated: “You know, I don’t want to attack Mrs. Wines. But . . . if
anyone has a reason to lie, she does too, you know. It’s her baby that’s on trial here. I’m not
denying that. It’s got to be hard. But the fact of the matter is her baby is running a criminal
conspiracy selling crack cocaine . . . .”
       45
         United States v. Walker, 772 F.2d 1172, 1179 (5th Cir.1985); see United States v.
Tavares, 100 F.3d 995, 998 (D.C. Cir. 1996) (noting the applicability of this principle to the

                                               34
  Case: 10-30233        Document: 00511958153          Page: 35     Date Filed: 08/15/2012



                                        No. 10-30233

took place; the only question was whether Wines was a participant in that
criminal activity. As already noted, no part of Wines’s proposed testimony
appears incredible, and, as defense counsel himself emphasized, there were
many reasons to disbelieve Woodson’s testimony. While the government asserts
that Wines’s testimony at the evidentiary hearing “did not even address
Woodson’s descriptions of the conspiracy,” the record does not support that
assertion. Wines explicitly denied the key elements of Woodson’s account –
including Wines’s alleged cooking of crack at the house on Blue Meadow the
night before the arrests and Wines’s alleged involvement in transporting the
drugs in the truck driven by Chappell. Wines maintained his innocence with
regard to the charges. Since Wines disclaimed any knowledge or involvement
in the scheme, it is not clear what else he should have said to “address
Woodson’s descriptions of the conspiracy.” Though the government had a chance
to cross-examine Wines regarding his proposed testimony, it declined to press
him on any of these points. The majority’s contention that Wines “does not
purport to deny” the alleged drug conspiracy is without foundation.
       Indeed, to show that Wines was not prejudiced, the majority re-imagines
the record, arguing that not only Wines’s 1993 narcotics conviction but also a
“whole clowder” of other convictions would have been introduced had Wines
testified. The record offers no support for this assertion. The majority dismisses
Wines’s contention that some of the convictions listed in the PSR were not
actually his and states that the convictions established a “pattern of his illegal
behavior that would have been available to challenge the credibility of his
innocence plea.” But the neither the district court nor the magistrate judge
found that any of those convictions would have been introduced or were likely
to have been introduced had Wines testified. And the government has never


prejudice element of ineffective assistance of counsel claims); Nichols v. Butler, 953 F.2d 1550,
1553 (11th Cir. 1992) (same).

                                               35
  Case: 10-30233             Document: 00511958153     Page: 36     Date Filed: 08/15/2012



                                         No. 10-30233

contended that it would have tried to introduce any of Wines’s alleged other
convictions.
       In addition, the majority misapplies the Federal Rules of Evidence. The
government cannot attempt to prove that a defendant is guilty by showing he
was guilty of illegal behavior in the past.46 While evidence of past convictions
may sometimes be introduced to demonstrate that a testifying defendant is not
a credible witness, there are limits on the use of such evidence. Under Rule 609,
evidence of a prior conviction is admitted only if the conviction required proof of
a dishonest or false statement,47 or if the offense was punishable by death or
imprisonment of more than one year and its probative value outweighs its
prejudicial value.48 None of the post-1993 convictions listed in Wines’s PSR
resulted in a sentence of more than one year’s imprisonment, and the record is
silent as to whether any of the crimes was punishable by more than one year’s
imprisonment. It seems unlikely that a “false or dishonest statement” was an
element of any of the listed offenses or that evidence of the convictions would be
more probative than prejudicial. Using the PSR’s list of prior offenses to justify
its prediction that a jury would convict Wines regardless of his testimony, the
majority signals its own conclusion about Wines’s guilt – a conclusion infected
by the very prejudice that the Federal Rules of Evidence guard against.
       The majority also suggests that Wines was not prejudiced because the
indictment included charges of a conspiracy “[b]eginning sometime in 1998” and
Wines’s testimony at the evidentiary hearing did not indicate that he could offer
any defense that would have “addressed [the conspiracy] convictions” as they


       46
         See FED. R. EVID. 404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion the person acted
in accordance with the character.”).
       47
            Id. 609(a)(2).
       48
            Id. 609(a)(1).

                                               36
  Case: 10-30233        Document: 00511958153      Page: 37   Date Filed: 08/15/2012



                                      No. 10-30233

related to the earlier period. This makes little sense. It is not the defendant’s
burden to rebut the government’s charges, and the charges in an indictment are
not evidence. The question whether Wines was prejudiced by his lawyer’s failure
to call him as a witness turns on the relationship between his potential
testimony and the evidence actually presented at the trial. While the indictment
charged a conspiracy beginning in 1998, the only evidence the government
introduced as to the time period of the alleged conspiracy was Woodson’s
testimony that he and Wines had taken a number of trips over some period that
began after Woodson encountered Wines at a gas station. Woodson also stated
vaguely, on cross-examination, that when Wines enlisted his help he had not
seen Wines for two or three years. There was no indication that the alleged
conspiracy began in 1998.
       Indeed, during closing arguments, the government said that Woodson ran
into Wines at the gas station “four months before they got arrested.” When it
argued the conspiracy charges, the government said that Wines “had the dope,
cooked the crack, and used [Chappell] and [Woodson] to move it up to Lake
Providence; argued that “[t]he money always went back to [Wines]”; and noted
the “seven and a half ounces of marijuana” found at the house on Blue Meadow
– but made no mention of the time period. If anything, the allegation that the
conspiracy dated back to 1998, coupled with the lack of any evidence on that
point, demonstrates the weakness of the government’s case and the substantial
probability that the jury would have acquitted had they been given an
alternative to Woodson’s testimony.
       This is no easy case, and, as the MJ acknowledged in her opinion, “this
is certainly not a case in which there was overwhelming evidence of guilt.”49
Because of the details of the potential testimony Wines described at the


      49
           Wines I, 2009 WL 5275839, at *6.

                                              37
  Case: 10-30233    Document: 00511958153     Page: 38   Date Filed: 08/15/2012



                                 No. 10-30233

evidentiary hearing, the lack of any other evidence rebutting key elements of
Woodson’s testimony, the gaps in Wines’s mother’s testimony, the fact that a
defendant’s testimony on his own behalf in a case like this one is uniquely
influential, the absence from the record of any indication that Wines’s testimony
would be counterproductive or self-defeating given the circumstances, and the
slenderness of the government’s case against Wines, the reasonable conclusion
is that Wines was prejudiced by counsel’s failure to call Wines as a witness.
                                      IV.
      Our review is de novo. Our charge demands a mastery of the facts – that
the stage for the fateful decision be fully and accurately set. A Thornton Wilder
set will not do. The majority opinion at best does not reflect such mastery; at
worst, it is tendentious. While the Strickland standard is daunting, the facts of
this case are unique. Given the unique facts, I am persuaded that Wines has
demonstrated both that his counsel’s performance was deficient and that he was
prejudiced. I dissent.




                                       38
