                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1




              United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604

                                    Argued June 9, 2009
                                  Decided August 11, 2009

                                            Before

                             WILLIAM J. BAUER, Circuit Judge

                             RICHARD A. POSNER, Circuit Judge*



No. 07-3775

WILLIAM C. GRAY,                             Appeal from the United States District Court
     Petitioner-Appellant,                   for the Southern District of Indiana,
                                             Indianapolis Division.
       v.
                                             No. 06 C 1840
UNITED STATES OF AMERICA,
     Respondent-Appellee.                    Larry J. McKinney,
                                               Judge.

                                          ORDER

    William C. Gray, who is serving a life sentence for conspiracy to distribute
methamphetamine, filed a motion under 28 U.S.C. § 2255 alleging various constitutional
errors in his trial and sentencing. The district court denied the motion, and, on appeal, Gray
attacks the district court’s resolution of two procedural issues. Gray argues that the district


       *
          Circuit Judge John Daniel Tinder recused himself after oral argument and has not
participated in deciding this appeal. This decision is being issued by a quorum of the panel.
See 28 U.S.C. § 46(d).
No. 07-3775                                                                              Page 2

court abused its discretion by ignoring his request for counsel and denying his motion for a
stay to conduct discovery. Because neither counsel nor a stay could have materially affected
Gray’s claims for relief under § 2255, any procedural error was harmless. We now affirm.

    Gray and fifteen other members of the Diablos Motorcycle Club were charged with
conspiring to distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1) and 846. According to
the government, Gray and Samuel Hargrove would acquire the drug in California, conceal it,
and ship it to Indiana. United States v. Gray, 410 F.3d 338 (7th Cir. 2005). At trial, Hargrove
testified about Gray’s role in the conspiracy. Mike Kollar and John Durnin, two other members
of the conspiracy, also testified against Gray, confirming Hargrove’s explanation of Gray’s role
in transporting methamphetamine from California to Indiana.

     Gray was convicted and, because he had two prior felony drug convictions, sentenced to
life in prison. Gray, 410 F.3d at 347. Gray and a number of other defendants appealed, and we
affirmed on all grounds as to Gray. Id.

    Gray then filed a timely motion to vacate his conviction, see 28 U.S.C. § 2255, alleging, as
relevant here, three grounds for relief. First, he claimed that his trial counsel was ineffective
because even after Gray informed him that Hargrove had a history of mental illness and
pathological lying, counsel did not investigate this claim. Gray argued that if his attorney had
properly investigated, he could have obtained Hargrove’s medical records and used them to
exclude his testimony at trial. Second, Gray contended that the prosecution violated his right
to due process when the prosecutor knowingly offered perjured testimony by Kollar and
Durnin. Finally, he argued that it was a constitutional error for the judge, rather than a jury,
to find that he had two prior felony convictions, and thus qualified for a life sentence.

     At the same time that he filed his motion to vacate, Gray also filed a motion asking for a
temporary stay. Gray argued that he needed time to obtain evidence that his prior drug
convictions were not felonies, and that he was in the process of ordering transcripts from the
California courts. The district court did not explicitly rule on the request for a stay, instead
ordering the government to respond to the motion to vacate. The government asked for an
extension of time, and the district court granted it an additional two months to file its brief.
Gray again requested that the district court grant him a stay so he could obtain the transcripts.
This time the court denied that motion, stating that “the prompt development of this action
is in the interests of both the United States and the defendant.” The court further instructed
Gray that if, after the government responded, he still needed more time to obtain evidence, he
should seek “an extension of time for the specific purpose required for that effort.”
No. 07-3775                                                                               Page 3

    The government filed its response to Gray’s § 2255 motion. Gray, in turn, asked the court
to recruit counsel so he could obtain Hargrove’s medical records. He also further developed
his sentencing claim, arguing that appellate counsel’s defective performance was to blame for
his failure to pursue relief on direct review. Additionally, Gray submitted the transcript of a
plea hearing from one of his California convictions which, he said, showed that the crime
would not have been a felony under federal law and thus should not have been used to
sentence him to life.

    Gray also filed an affidavit attesting, first, that he had informed his attorney that Hargrove
was a pathological liar with a long history of mental illness—including a 1990 mental hospital
stay under his brother’s name—and that Gray had asked his attorney to have Hargrove’s
testimony excluded at trial on this basis. Gray also swore that after he was sentenced he was
transported back to prison with Durnin, who told him that Hargrove had pressured Durnin
and Kollar into testifying against Gray, and, given the opportunity, Kollar and Durnin would
recant their testimony regarding Gray’s involvement.

    The district court did not rule on the request for counsel. Instead, it denied Gray’s § 2255
motion on the merits. As to his ineffective-assistance claim, the court held that “he has not
demonstrated how any of these supposed instances of deficient performance, including
counsel’s examination of any witness[,] resulted in prejudice.” As to the claim that the
prosecution knowingly used perjured testimony, the court rejected that claim because Gray
had not shown any material falsehood or that the government knew of that falsehood. Finally,
the court rejected Gray’s sentencing claim because, under United States v. Stevens, 453 F.3d 963,
967 (7th Cir. 2006), the district court had the power to make findings concerning Gray’s
criminal record.

    Gray filed a notice of appeal, and we granted a certificate of appealability. Gray v. United
States, No. 07-3775 (7th Cir. Mar. 24, 2008). The certificate was limited to whether Gray was
denied effective assistance of counsel and whether the prosecutor knowingly presented
perjured testimony. The parties were also instructed to address whether the district court
erred in denying Gray a stay or by not recruiting counsel to assist Gray.

    On appeal, rather than arguing the merits of his case, Gray focuses on the two procedural
issues. He argues first that the district court should have appointed counsel to help him
discover Hargrove’s mental health records and obtain affidavits from Durnin and Kollar.
Second, he argues that the district court erred in refusing to grant Gray a stay to obtain his
records. The merits are dispositive of the procedural issues: even if the court had appointed
counsel and granted the stay, and even if with counsel’s assistance Gray obtained evidence
supporting his factual allegations, he still would not have been entitled to relief under § 2255.
No. 07-3775                                                                                Page 4

Regarding the motion for appointment of counsel, Gray must show that he would have had
a reasonable chance of succeeding on his claims if counsel had been appointed. Winsett v.
Washington, 130 F.3d 269, 281 (7th Cir. 1997). And as to the stay, Gray must show that the
district court’s failure to grant the extension prejudiced him. See Griffin v. Foley, 542 F.3d 209,
217 (7th Cir. 2008).

     The first question is whether Gray’s trial counsel was ineffective for failing to investigate
Hargrove’s mental health. We recently stated that the inquiry is not whether counsel’s
performance was error-free, but rather whether counsel was effective overall. Williams v.
Lemmon, 557 F.3d 534, 541 (7th Cir. 2009). Gray must show that his trial counsel’s performance
fell below an objective standard of reasonableness and that he was prejudiced by counsel’s
errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

     Gray contends that his attorney should have investigated Hargrove’s history of mental
illness. Even accepting that Hargrove was a pathological liar with a history of mental illness
who had been treated in a mental hospital around 1990, Gray’s attorney was not ineffective for
failing to investigate this claim. Evidence about Hargrove’s mental health almost certainly
would not have resulted in his exclusion from trial because there is no evidence that Hargrove
was displaying signs of mental illness at the time he testified. See United States v. Zizzo, 120
F.3d 1338, 1347 (7th Cir. 1997).

    Instead, the evidence would have been used to impeach Hargrove. And the jury heard no
shortage of impeachment evidence against Hargrove. The various defense attorneys
questioned him about his plea bargain, his criminal record (which was extensive),
inconsistencies between his grand jury testimony and his trial testimony, and even the fact that
he had fraudulently used his brother’s name to check into a hospital (although whether it was
a mental hospital was not addressed). The jury had plenty of reasons to doubt Hargrove’s
credibility, and one more reason was unlikely to sway the outcome. See United States v.
Womack, 496 F.3d 791, 797 (7th Cir. 2007). Furthermore, Hargrove’s testimony was
corroborated by that of Durnin and Kollar. See Eckstein v. Kingston, 460 F.3d 844, 849 (7th Cir.
2006) (“It would have been pointless for counsel to harp on Graham's mental problems when
her testimony was entirely corroborated.”). So Gray’s counsel could have reasonably
determined that his time was better spent exploring other issues. In any event, Gray cannot
show he was prejudiced by not having the jury hear about Hargrove’s mental problems.

    Gray also argues that his due-process rights were violated because, he said, the prosecutor
knowingly used perjured testimony from Kollar and Durnin. The government’s use of
perjured testimony violates due process only if the government knew the testimony was false.
See United States v. Burke, 425 F.3d 400, 412 (7th Cir. 2005).
No. 07-3775                                                                                Page 5



    Here, Gray has not offered evidence that the government knew Kollar and Durnin lied.
Taking his sworn statement as true, Durnin told him “they both had been pressured by
Hargrove to lie so that all three of them would get a reduced sentence.” Even if the testimony
by Kollar and Durnin was false, Gray does not claim that Durnin said the prosecution was
involved; the supposed pressure to lie came from Hargrove. Gray’s § 2255 motion claims that
the government knew the testimony was false, but Gray has no personal knowledge of this,
and it is not in Durnin’s statement to Gray. An evidentiary hearing is unnecessary where the
petitioner’s allegations are conclusory, or where they would not establish a constitutional
violation even if proven. See Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006). Gray
offers no reason to believe the prosecution knowingly offered perjured testimony. Thus, the
court properly rejected his claim without further discovery.

   Because Gray’s allegations of ineffective assistance and prosecutorial misconduct do not
warrant relief, the district court’s failure to recruit counsel to represent Gray during the § 2255
proceeding cannot be reversible error–any error was harmless. This court will reverse a
decision not to recruit counsel only if the prisoner would have had a reasonable chance of
winning with counsel, a condition not met here. Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir.
2007); Winsett, 130 F.3d at 281.

     That said, it is somewhat troubling that the district court did not analyze Gray’s request
for counsel at all. Instead, it implicitly denied the request when it ruled on the merits of Gray’s
claims and rejected them. A district court necessarily abuses its discretion when it fails to
undertake any analysis of a prisoner’s request to appoint counsel. Pruitt, 503 F.3d at 660 (“The
court’s failure to undertake this necessary inquiry is an abuse of discretion.”). But abuse alone
is insufficient for a remand; prejudice is also necessary. Id. at 659 (“Even if a district court’s
denial amounts to abuse of discretion, we will reverse only on a showing of prejudice.”).

    The second procedural issue—whether the district court should have stayed the § 2255
proceedings—relates to Gray’s sentencing claims. The certificate of appealability does not
include the sentencing claim and Gray’s attorney does not press the argument. But again
Gray’s underlying argument for relief is meritless, and any abuse of discretion in denying
Gray’s request for a stay was therefore harmless.

    Gray argued before the district court that the sentencing court violated the Sixth
Amendment when it, rather than the jury, found that he had prior convictions. But it is well
established that a judge may find a defendant’s prior criminal convictions. See United States
v. Stevens, 453 F.3d 963, 967 (7th Cir. 2006) (“Unless or until the Supreme Court overrules
Almendarez-Torres, ‘the district court does not violate a defendant's Sixth Amendment right to
No. 07-3775                                                                            Page 6

a jury trial by making findings as to his criminal record that expose him to greater criminal
penalties.’”) (internal citation omitted).

    Gray argues further that his due-process right to be sentenced on the basis of accurate
information was violated because, he says, his prior state felony convictions would not have
been felonies under federal law. Although defendants have a due-process right not to be
sentenced based on inaccurate information, see United States v. Clanton, 538 F.3d 652, 655 (7th
Cir. 2008), that did not happen here. Gray believes that a state drug felony is an appropriate
basis for enhancing his sentence under 21 U.S.C. § 841(b)(1)(A) only if the conduct would be
punishable under the Controlled Substances Act as a felony. See Lopez v. Gonzales, 127 S.Ct.
625, 631 (2006). He cites United States v. Estrada-Mendoza, 475 F.3d 258, 261 (5th Cir. 2007),
where the Fifth Circuit held that “Lopez ineluctably applies with equal force to immigration
and criminal cases” to support this notion. But the Supreme Court has held that an offense
that is punishable by more than one year of imprisonment under state or federal law is a felony
for purposes of § 841(b)(1)(A). See Burgess v. United States, 128 S.Ct 1572, 1577 (2008). Gray
does not dispute that his prior drug convictions were punishable by more than one year of
imprisonment under California law. Thus his claim is meritless. Even if Gray had received
an extension to obtain his California transcripts, they would not have altered the outcome of
his case.

   Gray cannot prevail on the merits of his claims. Thus, any procedural error was harmless.
Accordingly, we AFFIRM the judgment of the district court.
