                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 05-1582
                               ________________

Terrick Alfred Williams,                 *
                                         *
            Appellant,                   *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Eastern District of Missouri.
United States of America,                *
                                         *            [PUBLISHED]
            Appellee.                    *

                                   ____________

                               Submitted: January 13, 2006
                                   Filed: June 27, 2006
                                  ____________

Before SMITH and HANSEN, Circuit Judges, and BOGUE,1 District Judge.
                         ________________

HANSEN, Circuit Judge.




      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
      Terrick Alfred Williams appeals from the district court's2 denial of his 28
U.S.C. § 2255 motion in which he sought to vacate his carjacking and firearm
convictions based on violations of his Sixth Amendment right to counsel. We affirm.

                                           I.
      The details of Williams's prior convictions are set forth in his direct appeal,
which we affirmed in United States v. Williams, 136 F.3d 547 (8th Cir. 1998), cert.
denied, 526 U.S. 1003 (1999). The facts are repeated here only as relevant to
Williams's § 2255 motion. Williams was charged with one count of carjacking and
one count of attempted carjacking, violations of 18 U.S.C. § 2119 (1994), two counts
of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1)
(1994), and two counts of using a firearm during a crime of violence, a violation of
18 U.S.C. § 924(c)(1) (1994), in relation to two carjacking incidents that occurred in
1995. Williams's first trial ended in a hung jury, but he was retried and a second jury
convicted him on all counts. The district court3 sentenced him to 450 months
imprisonment.

      Williams was convicted of carjacking a 1989 Mercury Cougar from Edith
Cooper on January 2, 1995, and then attempting to carjack a BMW from Dr. Jill O'Har
the morning of January 3. At trial, testimony was offered from Dr. O'Har and another
witness to the January 3 carjacking, both of whom identified Williams as the
perpetrator. Police had searched the two houses Williams frequented, and between
the two locations, the police had recovered a revolver with Williams's fingerprints on


      2
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
      3
       The Honorable George F. Gunn, Jr., now deceased, presided over both of
Williams's trials in the district court. Judge Sippel was later assigned to hear
Williams's § 2255 motion.
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it and several items that Ms. Cooper later identified as having been in her vehicle prior
to the carjacking. Evidence also established that Williams's fingerprints were on a
telescope that had been in the trunk of Cooper's car and that the Cooper vehicle was
recovered on the same street where Williams was arrested. After being taken into
custody by the police and later informed that he had been identified, Williams made
an oral confession to a police officer that he had committed the carjackings. However,
he later recanted that confession in a written statement. This evidence was presented
to the jury at both trials.

        The key difference between the two trials, which is the heart of the issue before
us, is the testimony of Williams's alibi witness, Clara Williams. Clara was Williams's
companion and testified at the first trial that she was with Williams from 7:30 a.m. the
morning of January 3 until around 10:30 a.m. The second carjacking occurred at
approximately 8:45 a.m. on January 3. Clara testified that they both attended a
conference at their daughter's school until 8:30 or 8:45 a.m. and then traveled to the
juvenile court for her son's court appearance that morning, arriving at approximately
9:00 a.m. or shortly thereafter. Williams's presence at the juvenile court was testified
to and verified at both trials by several witnesses, including court personnel. Clara's
testimony gave Williams an alibi only for the second carjacking, which occurred at
approximately 8:45 a.m. on January 3. On cross-examination, however, Clara
admitted that Williams in fact left her for a time that morning to borrow a car for them
to use that day. In addition, there was testimony that the location of the second
carjacking and the juvenile court were in close enough proximity that it would have
been possible for Williams to have committed the crime and yet be seen in the
courtroom around 9:00 a.m.

      When it came time for her testimony on the afternoon of the second day of the
second trial, Clara could not be found. She had been present for the first day and the
morning of the second, had been subpoenaed, and knew that she was going to be

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called to testify, yet Clara left the courthouse and told no one where she was going.
Williams's attorney first conducted a short search for Clara in the area around the
courtroom but did not locate her. After securing a brief recess to try to locate her
witness, his attorney searched the rest of the courthouse to no avail. After the recess,
trial counsel presented two other witnesses on behalf of Williams, and then over an
extended lunch hour continued her search for Clara. Neither Williams nor his wife,
Sharon, knew where Clara had gone. Counsel drove to locations Clara was known to
frequent and checked her residence. Clara was not home, but counsel located Clara's
and Williams's daughter Lily. As a last resort, his counsel asked Lily to testify as a
partial alibi witness.

       Back at the courthouse, his counsel and the prosecutor had an informal, off-the-
record conference with the district court judge. Williams's counsel indicated she was
interested in a further continuance in order to try to locate Clara, however the court
seemed unwilling to grant such a request. Counsel never made a formal motion for
a continuance nor did she ask that the court enforce the subpoena issued to Clara
through a writ of body attachment. Instead trial continued, and counsel substituted
Lily's testimony for that of Clara’s. Lily testified that she had been with her parents
at a school conference until approximately 8:30 or 8:45 a.m. that morning when she
went to class. In addition to Lily's testimony, Williams also had the testimony of the
witnesses who placed him in the juvenile court around 9:00 a.m. This left only a 15-
to 30-minute window of time that was missing from the alibi testimony Clara would
have provided, but it was during this 15 to 30 minutes that the crime occurred.

       Williams filed this § 2255 motion in district court asserting a number of errors
alleging the ineffective assistance of counsel. After holding an evidentiary hearing
on his numerous claims, the district court denied the motion in its entirety but granted
a certificate of appealability on one issue: whether or not counsel was ineffective for
failing to present the alibi testimony of Clara Williams. Williams specifically argues

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that counsel was ineffective in: 1) failing to formally ask for a continuance to locate
Clara, 2) failing to ask for a writ of body attachment to enforce the subpoena, and 3)
failing to move for admission of Clara's prior testimony as an alternative. Williams
also argues in this appeal that the district court should have additionally granted
certificates of appealability on the issues of: 1) whether his trial counsel was
ineffective in failing to seek a stipulation as to Williams's status as a felon, which
would have prevented the specifics of his prior convictions coming into the trial, and
2) whether his counsel on direct appeal was ineffective in failing to raise a claim based
on Old Chief v. United States, 519 U.S. 172 (1997).

                                           II.
       "We review the legal issues raised by the district court's denial of [Williams's]
§ 2255 motion de novo, but any underlying fact-findings are reviewed for clear error.
Ineffective assistance of counsel claims raise mixed questions of law and fact, and we
accordingly review those claims de novo." United States v. Davis, 406 F.3d 505, 508
(8th Cir. 2005), cert. denied, 126 S. Ct. 1083 (2006). "The applicable law here is
well-established: post-conviction relief will not be granted on a claim of ineffective
assistance of trial counsel unless the petitioner can show not only that counsel's
performance was deficient but also that such deficient performance prejudiced his
defense." Saunders v. United States, 236 F.3d 950, 952 (8th Cir.) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)), cert. denied, 533 U.S. 917 (2001).

       Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749, 753
(8th Cir.), cert. denied, 126 S. Ct. 221 (2005). The first part requires a "showing that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Id. Review of counsel's
performance by the court is "highly deferential," and we presume "counsel's conduct
falls within the wide range of reasonable professional assistance." Id. The court does

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not "second-guess" trial strategy or rely on the benefit of hindsight, id., and the
attorney's conduct must fall below an objective standard of reasonableness to be found
ineffective, United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). The
second part of the Strickland test requires that the movant show that he was prejudiced
by counsel's error, and "that 'there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.'"
Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at 694). "A reasonable
probability is a probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694.

       When determining if prejudice exists, the court "must consider the totality of
the evidence before the judge or jury." Id. at 695. As the district court noted, in this
instance we add Clara's proffered testimony to the evidence that was before the jury
in the second trial, and then "gauge the likely outcome of a trial based on this total
body of evidence." McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996), cert.
denied, 520 U.S. 1178 (1997). In doing this analysis, the court should be "mindful of
(1) the credibility of all witnesses, including the likely impeachment of the uncalled
defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense
witnesses called; and (3) the strength of the evidence actually presented by the
prosecution." Id.

         The district court determined that Williams's motion failed because he could not
demonstrate prejudice based on his counsel's failure to present Clara's testimony to the
jury. In doing so, the court determined that the likely outcome of the trial would not
have been different had Clara's testimony been offered at the second trial, due to the
overwhelming evidence against Williams and the fact that Clara's testimony in the
first trial had been "thoroughly impeached on cross-examination." (Appellant's Add.
at 13.) Williams argues that the district court used the wrong standard of review and
as such erred in reaching its conclusion based on the evidence before it.

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       Based on the record before us and the standards we have articulated, we find
no error in the district court's determination. The evidence against Williams was
overwhelming, even factoring in Clara's testimony. In this case, there is no question
as to whether or not Clara's testimony would have been impeachable; it in fact had
been at the first trial. The jury would also have been able to consider the extent of her
personal relationship with Williams in evaluating her credibility. In addition, while
the jury did not hear Clara's alibi testimony, they did hear Lily's account of a
substantial part of that morning, in conjunction with the other witnesses who placed
Williams at juvenile court around 9:00 a.m. Thus the lack of Clara's testimony did not
mean that there were no alibi witnesses on Williams's behalf at the second trial. While
Clara's testimony could have provided an alibi for the exact time of the second
carjacking, the Government offered several witnesses that directly contradicted what
her testimony would have been, such as the statements and identifications of both the
victim and witness of the second carjacking. After factoring Clara's testimony into all
the evidence before the jury in the second trial, Williams has failed to show prejudice
because the outcome likely would not have been different had her testimony been
offered at the second trial. Even if counsel could have done more in Williams's
defense in attempting to secure Clara's testimony, based on the strength of the
evidence "we cannot say the outcome of the trial would have been different but for
counsel's alleged errors." United States v. White, 341 F.3d 673, 681 (8th Cir. 2003),
cert. denied, 541 U.S. 955 (2004).

       "If the defendant cannot prove prejudice, we need not address whether counsel's
performance was deficient." DeRoo v. United States, 223 F.3d 919, 925 (8th Cir.
2000). Because we agree with the district court's determination that Williams fails to
meet the second part of the Strickland test, we need not address the first. However,
if we were to look to an analysis of the first part of the Strickland test, Williams could
not prevail here either. Counsel made several attempts to locate Clara to no avail and
then made a strategic decision to substitute the testimony of Lily. We will not second-

                                           -7-
guess trial strategy nor use the benefit of hindsight to determine what a better course
of action may have been. See Anderson, 393 F.3d at 753. While Williams focuses
on what more counsel could have done, that itself does not determine that her
representation fell below a reasonably objective standard. Looking at the situation at
that point in the trial, counsel's efforts to locate Clara when she voluntarily absented
herself mid-trial in contravention of her subpoena, were reasonable and did not
constitute ineffective assistance of counsel.

       Williams also contends that the district court erred when it failed to grant a
certificate of appealability on two other claims of ineffective assistance of counsel,
both of which related to the use of Williams's prior convictions at trial and the
Supreme Court's decision in Old Chief v. United States, 519 U.S. 172 (1997), which
was not decided until after Williams was convicted. Williams claims that his trial
counsel was ineffective for not demanding the use of a nonspecific stipulation of his
status as a convicted felon and that his counsel on direct appeal was also ineffective
for not raising the Old Chief issue on appeal. The ineffective assistance claims
themselves are not on appeal before us because "[w]e have held that appellate review
is limited to the issues specified in the certificate of appealability," Bryson v. United
States, 268 F.3d 560, 562 (8th Cir. 2001) (internal marks omitted), cert. denied, 536
U.S. 963 (2002), and the district court declined to issue a certificate on these two
issues. As such, we treat this appeal in part as an application for a certificate of
appealability on these issues. Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
We will grant a certificate of appealability "only if the applicant has made a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2);
Id. Williams has failed to do so here because trial counsel acted appropriately under
the law as it existed at the time of the representation, appellate counsel performed
reasonably in light of the relative weakness of any Old Chief claim Williams might
have had, and Williams could not establish prejudice on these asserted grounds. We



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therefore decline to grant a certificate of appealability for these remaining issues, and
do not reach them.

                                          III.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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