                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1264
                         ___________________________

                                Tonya Johnson Hyles

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                              Submitted: April 14, 2014
                                 Filed: June 6, 2014
                                   ____________

Before RILEY, Chief Judge, MELLOY and BENTON, Circuit Judges.
                              ____________

BENTON, Circuit Judge.

        A jury convicted Tonya Johnson Hyles (“Hyles”) of conspiracy to use interstate
facilities to commit murder for hire in violation of 18 U.S.C. § 1958(a), aiding and
abetting murder for hire in violation of 18 U.S.C. §§ 2 and 1958, possessing a firearm
in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(i), and
conspiracy to deliver a firearm to a felon in violation of 18 U.S.C. §§ 922(g)(1) and
371. She was sentenced to life imprisonment plus five years, and three years of
supervised release. Hyles moved under 28 U.S.C. § 2255 to vacate her sentence,
alleging ineffective assistance of counsel. The district court1 denied her motion
without an evidentiary hearing. She appeals. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.

                                           I.

       The facts of this case are set forth in United States v. Hyles, 521 F.3d 946 (8th
Cir. 2008), United States v. Cannon, 475 F.3d 1013 (8th Cir. 2007), and United States
v. Tyrese Hyles, 479 F.3d 958 (8th Cir. 2007). Reiterated here are the facts relevant
to Hyles’s current appeal.

       On August 10, 2000, in Caruthersville, Missouri, Coy L. Smith testified against
Tyrese D. Hyles (“Tyrese”), Hyles’s husband (then boyfriend). After the preliminary
hearing in the state drug case, Tyrese devised a plan to murder Smith. He asked
David L. Carter, his cellmate at the county jail, to kill Smith. Tyrese promised to
have Hyles bail Carter out of jail, and to give him a 1984 Pontiac in exchange for the
murder. Carter agreed. That same day, Hyles bailed Carter out of jail, listing the car
as collateral and telling the bondsman she had just sold the car to him.

       That afternoon, Hyles asked Samuel Anderson to borrow a gun. Anderson
agreed to give her the gun and said he would bring it to her house. According to
Anderson, Hyles said “that’s fucked up that Coy had testified against Tyrese” and
“that she’s going to get somebody to take care of his ass.” Five to ten minutes later,
Anderson brought a Beretta stainless steel gun to Hyles’s residence. He handed her
the gun and told her to place it in the cabinet. Carter, who was hiding in Hyles’s


      1
       The Honorable Henry Edward Autrey, United States District Judge for the
Eastern District of Missouri.

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house when the gun was delivered, retrieved it from the cabinet and left. Carter never
killed Smith. Instead, he returned the gun to Anderson a couple of days later.

       About the same time, Tyrese and Hyles were also arranging to have Amesheo
D. Cannon kill Smith. Phone records, from the evening of August 10, showed several
phone calls from Tyrese’s cell at the county jail to Hyles’s residence—including calls
at 7:50 and 8:34. There were also four calls from Cannon’s mother’s house in
Memphis, to Hyles’s house in Caruthersville—at 8:11, 8:23, 8:39, and 8:43. The last
call lasted 51 minutes, overlapping with the second call from Tyrese’s jail cell.

       April Leatherwood, Cannon’s girlfriend, testified that, on August 14, Cannon
called her from Memphis, saying that Hyles was driving him to Caruthersville from
Memphis. Hendrietta Nichols, also Cannon’s girlfriend, testified that she and Hyles
drove to Memphis to pick him up and he drove them all back to Caruthersville. A
couple of days later, Anderson gave Cannon the same gun he had originally given
Hyles. He testified he saw Cannon get out of the passenger side of Hyles’s Pontiac,
but could not see the driver. According to Anderson, Cannon stated that he was going
to “take care of that for Tyrese.”

         On August 20, Hyles and Cannon drove by Smith’s house. Hyles was driving
the Pontiac, with Cannon in the passenger seat. Hyles and Cannon went to the county
jail to talk to Tyrese. They were seen yelling up to Tyrese’s cell window from outside
the jail. The next morning, on August 21, the police found Smith shot to death in
bed.

       On June 11, 2001, Hyles signed a proffer letter with the government. It
contained an agreement to “engage in negotiations involving specific concessions”
by the government in exchange for further cooperation if the government believed the
information in the proffer was “truthful, candid and meritorious.” Pursuant to the



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proffer letter, Hyles testified before a grand jury on October 18, 2001. The
government later determined Hyles was untruthful and began to prosecute her.

      Hyles maintains that her attorney advised her that she had entered into a
non-prosecution agreement after her proffer letter but before her grand jury testimony.
No such agreement ever existed. Hyles, 521 F.3d at 953.

                                           II.

      Hyles alleges ineffective assistance of counsel when her trial counsel (1)
advised her to enter into a proffer agreement to provide statements to the government
and grand jury and (2) told her she had entered into a non-prosecution agreement with
the government. The district court denied Hyles’s § 2255 motion without an
evidentiary hearing. Hyles argues on appeal that the district court erred in denying
her motion. This court reviews “the ineffective assistance issue de novo, but findings
of underlying predicate facts are reviewed for clear error.” Anderson v. United
States, 393 F.3d 749, 753 (8th Cir. 2005).

      To show ineffective assistance of counsel, a movant “must demonstrate: (1) his
attorney’s performance was deficient and fell outside the range of reasonable
professional assistance; and (2) he suffered prejudice by showing that, absent
counsel’s ineffective assistance, there is a reasonable probability that the result of the
proceeding would have been different.” United States v. Taylor, 258 F.3d 815, 818
(8th Cir. 2001), citing Strickland v. Washington, 466 U.S. 668 (1984).

       Failure to establish either prong of Strickland “is fatal to a claim of ineffective
assistance.” Morelos v. United States, 709 F.3d 1246, 1250 (8th Cir. 2013). Because
Hyles cannot show prejudice, this court declines to address whether her attorney’s
performance was deficient.


                                           -4-
        The only prejudice Hyles identifies is admission of her grand jury testimony
at trial. Hyles insists she would not have testified before the grand jury if her counsel
had not told her about the alleged non-prosecution agreement. Hyles’s grand jury
testimony admitted at trial was: (1) she was present in court for Smith’s testimony at
the preliminary hearing; (2) Tyrese asked her via telephone to bond Carter out of jail;
(3) she signed the bond documents to get Carter out of jail; (4) she made
arrangements to have Anderson bring the gun to her house; (5) she made
arrangements to have Carter pick up the gun; and (6) Anderson got the gun back from
Carter.

       This grand jury testimony was cumulative of other trial evidence. There is no
“reasonable probability that the result of the proceeding would have been different”
had Hyles not testified before the grand jury. See Taylor, 258 F.3d at 818. Cf. Smith
v. Firestone Tire & Rubber Co., 755 F.2d 129, 132 (8th Cir. 1985) (“Improper
admission of evidence which is cumulative of matters shown by admissible evidence
is harmless error.”). Carter testified that (1) he and Hyles were both present at
Tyrese’s preliminary hearing, and (2) he picked up the gun from Hyles’s house.
Carter’s bond documents, showing Hyles’s signature, were admitted at trial, and the
bail bondsman testified that Hyles bonded Carter out of jail. Anderson testified that
(1) Hyles asked him for a gun, (2) he gave it to her at the house, and (3) he later
retrieved the gun from Carter.

      Hyles also testified she did not initially know why Tyrese asked her to bond
Carter out of jail. Since this testimony was favorable to Hyles, it cannot constitute
prejudice under Strickland. Hyles testified that Tyrese eventually told her the reason
for bonding Carter out, but other trial testimony supported Hyles’s knowledge of
Tyrese’s motivation. For example, Anderson testified that Hyles asked for a gun
because she was “going to get somebody to take care of” Smith.




                                          -5-
       Hyles acknowledges that “the testimony of Anderson and Carter was
corroborated by [her] own admissions,” but complains this undercut her ability to
attack their credibility. As this court noted, there was sufficient evidence of her guilt
even without their testimony:

      [T]he Government . . . showed [Hyles] knowingly joined a conspiracy
      with Cannon to murder Smith. The Government presented evidence that
      several phone calls were placed from Cannon’s residence to Hyles’s
      around the same time Hyles and Tyrese were conspiring with Carter to
      kill Smith, that Hyles drove to Memphis to pick up Cannon and bring
      him to Caruthersville a few days before the murder, and that Hyles drove
      Cannon by Smith’s house the evening before the murder.

Hyles, 521 F.3d at 955.

      In light of the cumulative and immaterial nature of her grand jury testimony,
Hyles cannot meet the Strickland prejudice prong.

                                          III.

      Hyles argues that her counsel was ineffective in advising her not to accept the
government’s plea offer. The district court denied Hyles’s § 2255 motion without an
evidentiary hearing. She appeals, claiming the district court erred in denying her
motion and abused its discretion by not holding a hearing.

      This court reviews “the ineffective assistance issue de novo, but findings of
underlying predicate facts are reviewed for clear error.” Anderson, 393 F.3d at 753.
A district court’s denial of an evidentiary hearing on a § 2255 motion may be
reversed only for an abuse of discretion. Winters v. United States, 716 F.3d 1098,
1103 (8th Cir. 2013). A § 2255 motion may be dismissed without a hearing if (1) the
criminal defendant’s allegations, accepted as true, would not entitle him or her to


                                          -6-
relief; or (2) the allegations cannot be accepted as true because they are contradicted
by the record, are inherently incredible, or are conclusions rather than statements of
fact. Id. at 1103.

       Assuming her attorney advised her to reject the plea,2 Hyles cannot prove that
her counsel’s performance was deficient. This court’s scrutiny of counsel’s
performance is “highly deferential,” presuming that counsel’s conduct “falls within
the wide range of reasonable professional assistance.” Osborne v. Purkett, 411 F.3d
911, 918 (8th Cir. 2005). This court does not “second-guess strategic decisions or
exploit the benefits of hindsight.” Id. As evident in her direct appeal, Hyles’s claims
attacking the sufficiency of the evidence were colorable. Hyles, 521 F.3d at 954-56.
Any advice that she hold the government to its burden at trial is not constitutionally
unreasonable.

       Hyles also cannot meet Strickland’s second prong. She maintained her
innocence at trial, at sentencing, and on appeal. Nothing in the record indicates she
wanted to accept the plea offer and would have acknowledged her guilt even if
properly advised about the risks of trial. See Sanders v. United States, 341 F.3d 720,
723 (8th Cir. 2003) (“A defendant who maintains his innocence at all the stages of his
criminal prosecution and shows no indication that he would be willing to admit his
guilt undermines his later § 2255 claim that he would have pleaded guilty if only he
had received better advice from his lawyer.”); United States v. Stevens, 149 F.3d 747,
748 (8th Cir. 1998) (“Even if counsel’s performance were somehow inadequate,
Stevens failed to establish that there was any reasonable probability that he would
have acknowledged his guilt had he been properly advised about the risks of trial.”).




      2
        Hyles’s assertion that counsel encouraged her to reject the plea is contradicted
by the record. Her trial attorney submitted an affidavit swearing he told Hyles her
chances were “exceedingly slim” and urging her to accept the plea.
                                          -7-
                        *******

The judgment is affirmed.
               ______________________________




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