                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0169n.06
                            Filed: March 27, 2008

                                        Case No. 06-5348

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 RANDALL E. COPE,                                     )
                                                      )
         Petitioner-Appellant,                        )
                                                      )       ON APPEAL FROM THE
                v.                                    )       UNITED STATES DISTRICT
                                                      )       COURT FOR THE EASTERN
 UNITED STATES OF AMERICA,                            )       DISTRICT OF KENTUCKY
                                                      )
         Respondent-Appellee.                         )
                                                      )
 _______________________________________              )

BEFORE: NORRIS, BATCHELDER, and GIBBONS, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Petitioner-Appellant Randall Cope (“Cope”)

appeals the district court’s judgment denying his 28 U.S.C. § 2255 motion to vacate his sentence.

Finding no merit in Cope’s contentions, we AFFIRM the judgment.

                                       I. BACKGROUND

       A federal grand jury charged Cope and his brother Terry Cope (“Terry”) in an 11-count

indictment for, among other things, conspiracy to commit murder, attempted murder, firearms

offenses, and a plot to kill then-Assistant United States Attorney (“AUSA”) David Bunning

(“Bunning”). The jury convicted Cope on ten counts, but acquitted him in the plot to kill Bunning.

On June 12, 2000, the district court sentenced Cope to 567 months’ and Terry to 502 months’

imprisonment. We affirmed the convictions and sentences on appeal, United States v. Cope, 312

F.3d 757 (6th Cir. 2002), recounting the facts in detail, see id. at 746-67. On October 4, 2004, Cope
filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging, among other things,

ineffective assistance of counsel and prosecutorial misconduct. Respondent-Appellee United States

of America (“Government”) filed a response opposing Cope’s motion. The motion first went before

a magistrate, who issued a report and recommendation concluding that the district court should deny

Cope’s motion because his claims were either procedurally defaulted or lacking in substantive merit.

On January 24, 2006, the district court accepted the report and recommendation, over Cope’s

objections, denying Cope’s motion on all claims and declining to issue a Certificate of Appealability

(“COA”).

          Cope then filed a new COA application with this court in accordance with Fed. R. App. P.

22(b). On March 27, 2007, we granted Cope’s COA with respect to three issues: (1) whether Cope

was denied effective assistance of counsel because his attorney made admissions of guilt during

closing arguments; (2) whether Cope was denied effective assistance of counsel because his attorney

failed to move for disqualification of the United States Attorney’s Office for the Eastern District of

Kentucky; and (3) whether the district court abused its discretion by ruling, without an evidentiary

hearing, that the Government did not withhold exculpatory evidence.

                                   II. STANDARD OF REVIEW

          When “reviewing the denial of a motion to vacate, alter, or amend a sentence pursuant to 28

U.S.C. § 2255, we review the district court’s factual findings for clear error and its legal conclusions

de novo.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (citing Smith v. United

States, 348 F.3d 545, 550 (6th Cir. 2003)). Conversely, we review for abuse of discretion a district

court’s decision whether to hold an evidentiary hearing on a section 2255 motion. Smith, 348 F.3d

at 550.


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                                          III. ANALYSIS

       Section 2255 provides that “[a] prisoner under sentence of a court established by Act of

Congress claiming . . . that the sentence was imposed in violation of the Constitution or laws of the

United States . . . may move the court which imposed the sentence to vacate, set aside, or correct the

sentence.” 28 U.S.C. § 2255 (2008). In order to obtain relief under section 2255, the petitioner must

establish the “existence of an error of constitutional magnitude which had a substantial and injurious

effect or influence on the guilty plea or the jury’s verdict.” Humphress, 398 F.3d at 858 (quoting

Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Although we granted a COA on three

separately stated issues, the first two are simply separate bases upon which Cope claims that his trial

counsel provided ineffective assistance. There are, therefore, two issues before us: (1) whether

Cope’s trial counsel was constitutionally ineffective under the standard set forth in Strickland v.

Washington, 466 U.S. 668, 687 (1984), because he made admissions of guilt during closing

arguments and/or because he failed to move for disqualification of the United States Attorney’s

Office for the Eastern District of Kentucky; and (2) whether the district court abused its discretion

by ruling, without first holding an evidentiary hearing, that the Government did not withhold

exculpatory evidence.

       A.      Ineffective Assistance of Counsel

       An ineffective-assistance-of-counsel claim requires the claimant to establish two

components: (1) that counsel’s performance was deficient; and (2) that counsel’s deficient

performance prejudiced the defendant. Strickland, 466 U.S. at 687. “[T]he proper standard for

attorney performance is that of reasonably effective assistance,” id., as measured by “prevailing

professional norms,” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quotation marks and internal


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citations omitted). As the Court made clear in Strickland, and has reiterated many times since, those

“prevailing professional norms” are the norms in place at the time counsel provided the now-

challenged assistance. Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's

perspective at the time.”); see also Wiggins v. Smith, 539 U.S. 510, 523 (2003) (“[W]e must conduct

an objective review of [counsel’s] performance, measured for reasonableness under prevailing

professional norms, which includes a context-dependent consideration of the challenged conduct as

seen from counsel's perspective at the time.” (quotation marks and internal citations omitted)). At

its core, the ineffective assistance of counsel analysis is based on “an objective standard of

reasonableness,” Strickland, 466 U.S. at 688, which is a highly deferential standard and includes the

strong presumption that counsel’s conduct “falls within a wide range of reasonable professional

assistance,” Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003).

               1.      Defense counsel’s statements during oral argument

       Cope alleges that in three separate instances during closing argument, his attorney conceded

Cope’s guilt and that because of those statements counsel’s assistance was constitutionally deficient.

The three statements of his counsel to which Cope objects are these:

       I talked to the prosecutors about this thing on many — this case on many occasions.
       And I told them, you know, I’m not going to get a fair trial, I’m going to get a —
       strike that. No disrespect to the Court. I’m going to get a trial, but it’s going to be
       a trial that’s so overwrought with prejudice, because of what occurred here, that
       nobody in their right mind could acquit these people. I know that. And they
       shouldn’t be acquitted of some things, perhaps.

                                              *****



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        There was a shooting around 1-22 of ‘99. There is virtually no question about it. Did
        Randy Cope participate in it? Did he aid and abet Terry Cope to do it? There is no
        proof of that. Could you convict him? Absolutely. You folks have the power.
        You’ve got much more power than her Honor. You’ve got much more power than
        those two U.S. Attorneys there. But you have the power to decide. As Mr. Howe
        said, you’ve got the power to vote back there. Could you convict him of it? There
        is no question. Did he do it? Probably not. That scares me.

                                               *****

        The offense occurs when you take it to the next level and you actively participate and
        you do something to kill somebody, as was done in this case, but, however, not to
        David Bunning.

        A defendant’s right to effective assistance of counsel extends to closing arguments.

Yarborough v. Gentry, 540 U.S. 4, 5 (2003). But “counsel has wide latitude in deciding how best

to represent a client,” and we must give deference to counsel’s tactical decisions in his closing

argument “because of the broad range of legitimate defense strategy at that stage.” Id. at 5-6.

Indeed, “[j]udicial review of a defense attorney’s summation is therefore highly deferential — and

doubly deferential when it is conducted through the lens of federal habeas.” Id. at 6.

        Cope failed to establish the first Strickland prong because he did not show that any of the

three challenged statements, viewed either individually or collectively, rendered counsel’s

performance constitutionally deficient. Both the district court and the magistrate examined the three

challenged statements in context, not as stand-alone statements. In context, the first statement was

part of an appeal to the jury to give Cope and Terry a fair trial, and it was followed immediately by

counsel’s asking the jury, “[b]ut the issue is, can you follow your duty and give these people a fair

trial? And that’s all we want.” An appeal for a fair trial and for the jury to perform its constitutional

duties does not constitute ineffective assistance of counsel. See Campbell v. United States, 364 F.3d

727, 733 (6th Cir. 2004) (holding not to be improper counsel’s statement to the jury to “[p]erform


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the duties that your oath says that you will do. And whatever your verdict is, it is. If your verdict

ultimately is guilty, so be it; it’s guilty. That’s what our system is about.”). Moreover, the comment

that Cope and Terry “shouldn’t be acquitted of some things, perhaps” must be viewed in light of

Cope’s having sought to raise the defense of entrapment to some of the counts of the indictment, see

Cope, 312 F.3d at 778; that defense is premised on an admission that the defendant committed the

acts charged. Counsel’s statement was an acknowledgment of that defense, not an admission of

guilt. See Valenzuela v. United States, No. 05-70742, 2005 WL 1355100 at *3 (E.D. Mich, June 3,

2005) (“A strategic decision to make a limited factual admission for the purpose of advancing an

affirmative defense is a substantially different matter than offering a full admission of guilt.”). Read

in context, the first statement reflects an objectively reasonable trial strategy.

        The second statement was a recognition that the jury had the power to decide Cope’s fate.

Defense counsel said that the jury could convict Cope of attempting to kill Jackson even though

“there is no proof” that he had anything to do with the shooting and “probably” did not do it — a

prospect that “scare[d]” defense counsel. Nothing in that statement even approached an admission

of guilt; quite the contrary, it expressed defense counsel’s apprehension that the jury would convict

an innocent man based on insufficient proof. Again, the second statement is clearly objectively

reasonable.

        The third statement was part of defense counsel’s larger point that, in this country, it is not

a crime to dislike someone, hate someone, or even wish someone were dead. The crime occurs when

“you take it to the next level.” After the excerpt recounted above, defense counsel emphasized that

“there is no proof” Cope attempted to kill AUSA Bunning. Read in context, that statement simply

acknowledged that while there had been actions taken to “kill somebody,” there was no proof that


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anybody actually tried to kill AUSA Bunning. The jury obviously agreed, because they acquitted

Cope on the charge relating to AUSA Bunning. Clearly, that third statement was objectively

reasonable.

               2.      Defense counsel’s failure to file a motion to recuse

       Cope next argues that because he was charged with attempting to murder Bunning — who

at the time served as an AUSA for the Eastern District of Kentucky — the entire United States

Attorney’s Office should have been disqualified from conducting his prosecution because of

prosecutorial bias, and that his counsel’s failure to file such a motion rendered his assistance

constitutionally ineffective. We find Cope’s assertion meritless.

       A scenario in which a court can disqualify an entire United States Attorney’s office will

rarely, if ever, present itself. United States v. Bolden, 353 F.3d 870, 875 (10th Cir. 2003). The

disqualification of Government counsel is a drastic measure and, even if one AUSA has a conflict

of interest, the proper remedy is to disqualify that individual from the case, not all of the attorneys

in the district. Id. at 875-76; see also United States v. Caggiano, 660 F.2d 184, 190-91 (6th Cir.

1981) (reversing the district court’s decision to disqualify an entire United States Attorney’s office

where one of the attorneys in the office had served as Caggiano’s defense lawyer during a previous

case, on the same charges, that ended in a hung jury.); In re Harris County, No. 05-20404, 240 Fed.

Appx. 644, 645-46 (5th Cir. June 28, 2007) (holding as improper the disqualification of an entire

county prosecutor’s office, stating that such a sanction “must not be imposed cavalierly,” but

upholding the disqualification of two individual prosecutors.). “There is, of course, quite a

difference in the relationship between law partners and associates in private law firms and lawyers

representing the government.” Caggiano, 660 F.2d at 190. “[D]isqualifying an entire United States


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Attorney’s office is almost always reversible error, regardless of the underlying merits of the case.”

Bolden, 353 F.3d at 876.

       Cope does not allege that Bunning participated in any way in his prosecution. Given that

fact, and the strong preference not to exclude an entire United States Attorney’s office from a case,

we agree with the district court that defense counsel’s failure to file a motion to do so was not

objectively unreasonable. Cope therefore cannot satisfy the first prong of Strickland with regard to

this claim of ineffective assistance of counsel.

       When deciding ineffective-assistance claims, we “need not address both components of the

inquiry ‘if the defendant makes an insufficient showing on one.’” Crawford, 364 F.3d at 730

(quoting Strickland, 466 U.S. at 697). Because we hold that Cope failed to demonstrate that his

counsel’s performance was deficient in any of the particulars he has raised in his ineffective-

assistance claims, we do not reach Strickland’s second prong, the question of prejudice.

       B.      The District Court’s Failure to Hold an Evidentiary Hearing

       Cope’s last argument is that the district court abused its discretion when it concluded, without

holding an evidentiary hearing, that the Government did not withhold exculpatory evidence.

Specifically, Cope claims that the Government withheld the information that one of its witnesses,

Shirley Sheppard (“Sheppard”), was under investigation by the United States Attorney’s Office for

the Western District of Kentucky at the time of his testimony. This impeachment information, Cope

maintains, should have been disclosed in accordance with Brady v. Maryland, 373 U.S. 83 (1963).

       Government attorneys prosecuting a case have a duty to learn of any evidence favorable to

the defendant known to anyone acting on the Government’s behalf in the case, including police

officers. O’Hara v. Brigano, 499 F.3d 492, 502-03 (6th Cir. 2007) (citing Kyles v. Whitley, 514 U.S.


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419, 437 (1995)). Even “unintentional suppression of exculpatory evidence by the prosecution will

suffice to establish a Brady violation.” Id. at 503 (citing Strickler v. Green, 527 U.S. 263, 292

(1999)). Impeachment evidence qualifies as Brady material that the prosecution must disclose. Id.

at 502.

          The first flaw in Cope’s argument is that the United States Attorney’s Office for the Western

District of Kentucky was not working on behalf of the United States Attorney’s Office for the

Eastern District of Kentucky in this case. There was no collaborative effort between the two offices

regarding Cope’s and Terry’s prosecution or any investigation into Sheppard. Additionally, the

Government filed two signed pleadings with the magistrate stating that the prosecutors in Cope’s

case “had no knowledge of” and were “completely unaware” of any investigation of Sheppard at the

time of Sheppard’s testimony against Cope. Cope provides no evidence to the contrary.

          The second flaw here is that Sheppard was not indicted until April 4, 2001, more than a year

after the jury reached a verdict in Cope’s case, and Cope has conceded that he has no basis for his

claim that any investigation of Sheppard was in fact underway at any time during Cope’s

prosecution. While it is possible that the United States Attorney’s Office for the Western District

of Kentucky was investigating Sheppard at the time of his testimony, there is absolutely no evidence

to that effect, and, as we have already pointed out, there is no evidence that anyone in the United

States Attorney’s Office for the Eastern District of Kentucky, or any of the law enforcement officers

working on the case, were aware of any such investigation.

          The district court correctly concluded that where the record demonstrates that there is no

basis for relief, the burden is on the petitioner who seeks an evidentiary hearing in proceedings under

28 U.S.C. § 2255 to establish his entitlement to such a hearing by showing the existence of a factual


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dispute. See United States v. Smith, 348 F.3d 545, 551 (6th Cir. 2003). Acknowledging that the

government is obligated to discover exculpatory evidence known to anyone acting on its behalf, see

Strickler v. Green, 527 U.S. 263, 280-81 (1999), the district court also acknowledged that the

government is not obligated to go looking for exculpatory evidence of which it is not aware, see

United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998). The district court held that Cope had

provided nothing more than mere speculation that an investigation of Sheppard might have been

ongoing in the Western District of Kentucky at the time of Cope’s trial, or that the United States

Attorney’s Office in the Eastern District of Kentucky might have been aware of it, and mere

speculation was not enough to entitle Cope to an evidentiary hearing. We find no abuse of discretion

in the district court’s refusal to hold an evidentiary hearing prior to ruling on Cope’s Brady claim.

                                       IV. CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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