                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 15-1492
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                     JAKE KELLY,
                                            Appellant
                                     _____________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (No. 2-04-cr-00605-001)
                        District Judge: Honorable Jan E. DuBois

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 September 16, 2016

     Before: CHAGARES, GREENAWAY, JR., and RESTREPO, Circuit Judges.

                                 (Filed: October 5, 2016)
                                      ____________

                                        OPINION *
                                      ____________

CHAGARES, Circuit Judge.

       Jake Kelly appeals from the District Court’s order entered on November 24, 2014,

denying his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
On appeal, Kelly raises three issues: (1) whether the District Court applied the correct

standard for demonstrating prejudice under Strickland v. Washington, 466 U.S. 668

(1984); (2) whether the District Court previously found that Kelly had met a more

stringent “probability-of-acquittal” standard, and thus, under the law of the case doctrine,

he necessarily met the lower prejudice standard under Strickland; and (3) whether the

District Court should make certain credibility findings and decide in the first instance

whether trial counsel’s performance was deficient under Strickland. For the reasons that

follow, we will vacate the District Court’s order and remand for proceedings consistent

with this opinion.

                                             I.

       We write solely for the parties and therefore recite only the facts necessary to our

disposition. Kelly is currently serving a mandatory minimum 180-month sentence of

incarceration for one count of possession of a firearm by a convicted felon. He was

arrested during an “open inspection” of Café Breezes, a bar in Philadelphia, around 1:00

a.m. on May 1, 2004. During the inspection, a group of approximately nineteen police

officers entered Café Breezes with the purpose of checking whether the bar maintained

the proper licenses and to determine whether underage drinking, narcotics sales, or other

criminal activity was taking place. Kelly, one of the bar’s patrons, was sitting on a bar

stool near the front door. At some point during the inspection, a gun fell to the floor next

to Kelly. He was arrested and charged with possession of a firearm by a convicted felon.

       At trial, the Government’s only evidence as to Kelly’s possession of the gun was

the testimony of police officer Donna Stewart. Officer Stewart testified that, during that

                                             2
inspection, she saw a gun fall from Kelly’s lap when he stood up from his bar stool.

Officer Stewart, who was standing behind Kelly, noticed him “sweating,” “fidgeting,”

and “leaned over, crunched over in his seat with his hands below the bar where [she]

couldn’t see them.” Appendix (“App.”) 136, 149-50. She then walked to the other side

of the bar to speak to another officer. When Officer Stewart returned to her spot behind

Kelly, she saw him reach “very quickly towards his waist.” Id. at 139. At that point,

Officer Stewart “stepped forward, . . . put [her] hand on [Kelly’s] shoulder and grabbed

his right wrist.” Id. at 139. She told him, “Nobody was speaking to you, nobody asked

you for your ID, place your other hand on the bar.” Id. It was then, she testified, that

Kelly stood up and “the gun fell from his lap and down along his left leg and hit the metal

chair rail.” Id.

       Kelly’s defense counsel did not call any witnesses. On July 21, 2005, the jury

found Kelly guilty of possession of a weapon by a convicted felon.

       In October 2005, Kelly, represented by different counsel, filed a motion for a new

trial based on newly discovered evidence. 1 That new evidence consisted of statements

allegedly made by Victor Jones, who had been sitting directly next to Kelly at Café

Breezes on the night of his arrest. Jones was not interviewed by either the Government

or the defense prior to Kelly’s trial. But on or about July 28, 2005, after hearing that

1
  Kelly also sought a new trial on the basis of ineffective assistance of counsel for failing
to interview and present witnesses. The District Court appropriately denied that claim
without prejudice, indicating that such claims were more appropriately brought through a
§ 2255 motion. See App. 563-64; United States v. Gaydos, 108 F.3d 505, 512 n.5 (3d
Cir. 1997) (“We have emphasized our preference that claims of ineffectiveness of
counsel be raised in a collateral proceeding under 28 U.S.C. § 2255.”).

                                              3
Kelly had been convicted, Jones allegedly told his friend Kemahsiah Gant that he, and

not Kelly, actually “had the gun” that night and that “[w]hen the police came in he got

nervous and threw it down on the floor.” App. 394. 2 Gant, who is friends with Kelly’s

girlfriend Jacqueline Cephas, waited three weeks before telling Cephas about Jones’s

comments. Cephas then informed Kelly’s defense attorney.

       At a post-trial evidentiary hearing based on this new evidence, the District Court

heard testimony from four witnesses: Jones, Gant, Cephas, and police officer Clarence

Clark. Jones testified as to both his recollection of the night of Kelly’s arrest and his later

conversation with Gant. Jones testified that his barstool was at the end of the long end of

the bar, and that Kelly was seated directly to his left at the short end of the bar. Jones

stated that, during the inspection, someone behind him “brushed into [him]” and put a

gun in his lap. Jones testified that he pushed the gun off his lap, and it fell onto the floor.

He believed that the gun he pushed off his lap was the gun for which Kelly was convicted

of possessing. He did not initially tell the police that he believed that Jones was wrongly

arrested because he “didn’t want to have anything to do with that.” 3 App. 500.




2
 Gant later testified at Kelly’s post-trial evidentiary hearing on the new evidence. At that
hearing, Gant recounted her initial conversation with Jones. Gant testified that Jones told
her that “it wasn’t [Kelly’s] gun” and that “[Jones] had the gun and threw it on the floor.”
App. 423.
3
 Jones also testified that, because he saw Kelly after his arrest, he “assumed [the case
against him] was over.” App. 519. After learning about Kelly’s conviction and sentence,
and after being contacted by Kelly’s counsel, Jones decided that testifying at the post-trial
hearing “probably was the right thing to do.” Id. at 520.

                                               4
       Based on the post-trial testimony and the parties’ submissions, the District Court

granted Kelly’s motion for a new trial based on the newly discovered evidence. 4 But a

panel of our Court reversed. See United States v. Kelly, 539 F.3d 172 (3d Cir. 2008)

(“Kelly I”). In Kelly I, we held that Kelly failed to demonstrate due diligence — a

necessary requirement to be granted a new trial on the basis of newly discovered

evidence. 5 We held that the diligence inquiry requires a district court to consider

“whether the evidence at issue could have been discovered before or at the time of trial

with the exercise of reasonable diligence on behalf of the defendant and/or his counsel.”

Kelly I, 539 F.3d at 182. Based on the pre-trial record for Kelly’s case, our Court found

“absolutely no evidence — nor allegation — of pretrial diligence on Kelly’s behalf.” Id.

at 183. “The record could not be more clear that Kelly made no effort to speak with


4
 Generally, a defendant seeking a new trial on the basis of newly discovered evidence
must meet five requirements:

       (a) the evidence must be in fact, newly discovered, i.e., discovered since the
       trial; (b) facts must be alleged from which the court may infer diligence on
       the part of the movant; (c) the evidence relied on, must not be merely
       cumulative or impeaching; (d) it must be material to the issues involved;
       and (e) it must be such, and of such nature, as that, on a new trial, the newly
       discovered evidence would probably produce an acquittal.

United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976).
5
  In Kelly I, we did not reach the merits of whether Kelly had met the probability-of-
acquittal requirement for a new trial because our determination that Kelly failed to meet
the diligence requirement was dispositive.

We also emphasize that our holding in Kelly I that Kelly was not reasonably diligent does
not defeat a later ineffective assistance of counsel claim. Indeed, a lack of due diligence
by defendant’s counsel would support, and not hinder, a defendant’s ineffective
assistance of counsel claim.

                                             5
Jones — despite seeing him anywhere from one to twenty times after the arrest . . . .

[S]uch inaction simply does not qualify as reasonable diligence.” Id.

       Following remand, the District Court sentenced Kelly to 180 months of

imprisonment, and our Court affirmed the conviction and sentence. United States v.

Kelly, 406 F. App’x 676 (3d Cir. 2011) (not precedential) (“Kelly II”). Kelly

subsequently filed his § 2255 motion alleging ineffective assistance of counsel. Kelly

claims that he was provided with ineffective assistance of counsel based on his trial

counsel’s failure to (1) interview prospective defense witnesses; (2) offer evidence of

defendant’s post-arrest statement; 6 (3) otherwise conduct a reasonable investigation; and

(4) request a “mere presence” jury instruction. The District Court denied the motion, and

Kelly timely appealed.

                                            II.

       The District Court had jurisdiction over Kelly’s collateral petition under 28 U.S.C.

§§ 1331 and 2255, and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). 7


6
  At some point after the gun fell to the floor, Kelly told the officers that “someone threw
the gun at [him.]” App. 551. The District Court granted the Government’s motion in
limine to exclude that statement. The District Court’s order, however, was a preliminary
ruling that provided an opportunity for the defense to develop evidence concerning the
duration of time between when the statement was made and when the gun was allegedly
thrown, which could have supported admission of the statement as an excited utterance or
a statement of present sense impression. Kelly’s trial counsel never revisited this issue to
seek admission of that statement. See id.
7
  On November 10, 2015, a panel of our Court granted Kelly’s request for a certificate of
appealability under 28 U.S.C. § 2253(c)(1) on the questions whether trial counsel was
ineffective for failing to interview prospective defense witnesses and for failing to
conduct a reasonable investigation (claims 1 and 3 in his § 2255 motion). The panel
determined that “reasonable jurists would debate whether the District Court was correct
                                             6
“In a federal habeas corpus proceeding, we exercise plenary review [over] the district

court’s legal conclusions and apply the clearly erroneous standard to the court’s factual

findings.” United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (quoting Lambert v.

Blackwell, 134 F.3d 506, 512 (3d Cir. 1997)).

                                            III.

       Kelly argues that the District Court erred when it denied his ineffective assistance

of counsel claim based on trial counsel’s failure to conduct a reasonable investigation. 8

First, Kelly argues that the District Court applied a higher standard of “prejudice” than a

defendant is required to show for an ineffective assistance of counsel claim under

Strickland. Second, Kelly argues that the District Court previously found that he had met

a higher standard than Strickland prejudice, and thus, under the law of the case doctrine,

the District Court should have determined that he was prejudiced under Strickland. In

addition to those two arguments, Kelly requests that we instruct the District Court, on

remand, to make additional credibility findings and address the Strickland performance

prong. We will address each argument in turn.



in its prejudice analysis. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Strickland v.
Washington, 466 U.S. 668, 693-94 (1984).”
8
  The District Court also denied Kelly’s ineffective assistance of counsel claims based on
the failure of trial counsel to offer evidence of Kelly’s post-arrest statement and the
failure of trial counsel to request a “mere presence” jury instruction. Kelly does not
discuss either of these denials in his appellate brief. Thus, he has forfeited any challenge
to the District Court’s denial of those claims. See Simmons v. City of Phila., 947 F.2d
1042, 1065 (3d Cir. 1991) (“[A]bsent extraordinary circumstances, briefs must contain
statements of all issues presented for appeal, together with supporting arguments and
citations.”).

                                             7
                                             A.

       Kelly argues that the District Court did not employ the correct standard for

determining “prejudice” for an ineffective assistance of counsel claim under Strickland.

He argues that the District Court used the more stringent “probability-of-acquittal”

standard that defendants must meet to be granted a new trial based on newly discovered

evidence.

       To establish a claim of ineffective assistance of counsel, a defendant must show

that (1) counsel’s conduct was deficient, and (2) the deficiency resulted in prejudice to

defendant. See Strickland, 466 U.S. at 687; McNeil v. Cuyler, 782 F.2d 443, 447-49 (3d

Cir. 1986). When assessing prejudice, a court is to determine whether there is “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694 (emphasis added).

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.

       This reasonable probability standard is less stringent than the probability-of-

acquittal standard governing motions for a new trial based on newly discovered evidence.

To be granted a new trial based on newly discovered evidence, a defendant must show

that the “newly discovered evidence would probably produce an acquittal.” United States

v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976) (emphasis added). 9 In Strickland, the

Supreme Court explicitly recognized the difference between the two standards:


9
 “Probably” is typically treated as the equivalent of “more likely than not.” See, e.g.,
CSX Transp., Inc. v. McBride, 564 U.S. 685, 705 (2011); Sawyer v. Whitley, 505 U.S.
                                              8
              [W]e believe that a defendant need not show that counsel’s
              deficient conduct more likely than not altered the outcome in
              the case. [That] outcome-determinative standard has several
              strengths. It defines the relevant inquiry in a way familiar to
              courts, though the inquiry, as is inevitable, is anything but
              precise. The standard also reflects the profound importance
              of finality in criminal proceedings. Moreover, it comports
              with the widely used standard for assessing motions for new
              trial based on newly discovered evidence. Nevertheless, the
              standard is not quite appropriate.

              Even when the specified attorney error results in the omission
              of certain evidence, the newly discovered evidence standard
              is not an apt source from which to draw a prejudice standard
              for ineffectiveness claims. The high standard for newly
              discovered evidence claims presupposes that all the essential
              elements of a presumptively accurate and fair proceeding
              were present in the proceeding whose result is challenged.
              An ineffective assistance claim asserts the absence of one of
              the crucial assurances that the result of the proceeding is
              reliable, so finality concerns are somewhat weaker and the
              appropriate standard of prejudice should be somewhat lower.
              The result of a proceeding can be rendered unreliable, and
              hence the proceeding itself unfair, even if the errors of
              counsel cannot be shown by a preponderance of the evidence
              to have determined the outcome.

466 U.S. at 693-94 (citations omitted). Thus, to establish an ineffective assistance of

counsel claim, unlike with a motion for a new trial based on newly discovered evidence,

a “defendant need not show that counsel’s deficient conduct more likely than not altered

the outcome in the case.” Id. at 693. A defendant need only show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.



333, 366 (1992) (Blackmun, J., concurring); United States v. Rosario, 118 F.3d 160, 162
(3d Cir. 1997).

                                              9
       Kelly points to numerous instances where the District Court appears to have used

the stricter standard for a motion for a new trial based on newly discovered evidence

rather than the Strickland prejudice standard. For example, the District Court’s opinion

indicated:

              In determining whether counsel’s failure to identify Jones and
              secure his testimony at trial was prejudicial to Kelly, the
              Court must examine Jones’s testimony in light of the “totality
              of evidence at trial.” In doing so, the Court concludes that
              Jones’s testimony was not sufficiently credible that it likely
              would have produced an acquittal, in particular because of the
              numerous inconsistencies between Jones’s testimony and the
              evidence of the record.

App. 26 (citation and footnote omitted) (emphasis added). Later in the opinion, the

District Court again referenced the likelihood of an acquittal based on Jones’s testimony:

“A jury could not credit both Jones’s testimony and Officer Stewart’s testimony

regarding the gun and, given the inconsistencies in Jones’s version of events, it is

unlikely that Jones’s testimony would have resulted in an acquittal.” App. 27 (emphasis

added).

       The Government argues that, despite the District Court’s multiple references to the

probability of acquittal, the District Court actually applied the correct legal standard. The

Government points to the District Court’s conclusion that “there is not a reasonable

probability that if Jones’s testimony had been introduced at trial, the jury would have

credited this testimony and acquitted Kelly.” Gov’t Br. 33 (quoting App. 28); see also

App. 25. But an incantation of the correct Strickland standard by the trial court will not

automatically alleviate our concern that the District Court actually applied the incorrect


                                             10
standard. See, e.g., Gonzalez-Soberal v. United States, 244 F.3d 273, 277 (1st Cir. 2001)

(remanding when the district court may have applied improperly stringent standard when

it cited the incorrect standard once and the correct standard multiple times). Nor do we

accept the Government’s argument that because the Supreme Court used the word

“likely” in Strickland, the District Court did not err in stating the prejudice standard. See

Gov’t Br. 33. In Strickland, the Supreme Court’s precise words were: “[A] court making

the prejudice inquiry must ask if the defendant has met the burden of showing that the

decision reached would reasonably likely have been different absent the errors.” 466

U.S. at 696 (emphasis added).

       In the case before us, the District Court repeatedly omitted Strickland’s key word:

“reasonably.” Instead, the District Court’s entire discussion of the inconsistencies

between Jones’s testimony and Officer Stewart’s trial testimony was framed using the

incorrect standard. Thus, we cannot be certain as to whether the District Court applied

the “reasonable probability” standard, or another more stringent standard — such as the

“probability of acquittal” or “more likely than not” standard.

       We note that the Supreme Court has acknowledged that, despite the difference

between the “reasonable probability” and “more likely than not” standards, this

difference “should alter the merit of an ineffectiveness claim only in the rarest case.”

Strickland, 466 U.S. at 697; see also Harrington v. Richter, 562 U.S. 86, 112 (2011)

(“[T]he difference between Strickland’s prejudice standard and a more-probable-than-not

standard is slight and matters ‘only in the rarest case.’ [Strickland, 466 U.S.] at 693, 697.

The likelihood of a different result must be substantial, not just conceivable.”).

                                             11
       This, however, is the rare case. In the case before us, the District Court previously

ruled in favor of Kelly on his motion for a new trial, in the context of the “probability-of-

acquittal” standard. 10 Because of the similar language used in the District Court’s denial

of Kelly’s collateral petition to that in the order granting Kelly’s motion for a new trial,

we cannot be certain that the District Court in fact applied the Strickland prejudice

standard.

       This is also the rare case where, based on the record, there might be a “reasonable

probability” — even if not “more likely than not” — that the jury would have found

reasonable doubt as to Kelly’s guilt had Jones testified at trial. The District Court found

inconsistencies between Jones’s testimony and his earlier statement, as well as

inconsistencies with the testimony of Officers Stewart and Clark. But perhaps those

inconsistencies would not foreclose a “reasonable probability” that a jury would have




10
  However, as discussed infra, the District Court’s probability-of-acquittal inquiry when
ruling on Kelly’s motion for a new trial was flawed.

                                              12
acquitted Kelly. 11 This is a question that we will leave for the District Court to answer in

the first instance. 12

        Therefore, we will vacate the District Court’s order denying Kelly’s ineffective

assistance of counsel claim based on the failure to conduct a reasonable investigation, and

we will remand for the District Court to determine, based on the totality of the evidence,

whether Kelly has demonstrated a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland

466 U.S. at 694.

                                                  B.

        Kelly next argues that the District Court had previously found that he had met the

more stringent “probability of acquittal” standard when ruling on his motion for a new




11
   For example, as the District Court indicated when ruling on Kelly’s motion for a new
trial: “Jones had a strong motive not to come forward” until after Kelly had been
convicted, Jones did not stand to benefit from falsely helping Kelly, and Kelly’s excluded
post-arrest statement is corroborative of Jones’s prospective testimony. App. 574. The
District Court later held that — viewing Jones’s testimony in totality — “it is unlikely
that Jones’s testimony would have resulted in an acquittal.” App. 18 (emphasis added).
But given the District Court’s earlier findings, we think it is possible that the District
Court might find a “reasonable probability” that a jury would not have convicted Kelly if
Jones had testified that he (Jones) threw the gun to the floor.
12
  The Government argues that “Kelly does not challenge the correctness of the district
court’s decision that he was not prejudiced by his counsel’s alleged ineffectiveness.” See
Gov’t Br. 34. Kelly disagrees with the Government’s assertion that he does not challenge
the finding of prejudice itself. See Reply Br. 2-3. We agree with Kelly and read his
briefs to be challenging the District Court’s finding of prejudice.

                                             13
trial, and thus, under the law of the case doctrine, 13 the District Court should have found

that he met the “prejudice” prong of the Strickland inquiry. To support his argument,

Kelly points to the District Court’s finding, in ruling on his motion for a new trial, that a

“jury is likely to find Jones’s prospective testimony credible,” and that Jones’s testimony

is “likely to produce an acquittal.” App. 574. The District Court, however, explicitly

“decline[d] to make . . . a credibility determination [as to Jones’s testimony],” id. at 571,

but concluded that a jury was likely to find Jones’s prospective testimony credible:

               [A] jury is likely to find Jones’s prospective testimony
               credible for, inter alia, the following reasons: First, it is not
               logical for Jones to perjure himself for the boyfriend (Kelly)
               of one of his friends (Cephas). Second, Jones had a strong
               motive not to come forward and to avoid discussing the
               incident until Gant reported that Kelly had been convicted.
               Third, Jones cannot benefit by falsely helping Kelly. Fourth,
               some time after the arrest but while still at the bar, Kelly
               stated ‘someone threw the gun at [him]’ which corroborates
               Jones’s prospective testimony.

Id. at 574 (alterations in original).

       When we previously considered (and reversed) the District Court’s order granting

Kelly’s motion for a new trial, we indicated that the District Court’s probability-of-

acquittal determination was problematic. We noted that if we were to reach the merits of

the probability-of-acquittal determination, we would remand for the District Court to

make its own credibility assessment as to Jones’s testimony, as viewed in the context of

the other evidence in the record. A district court “serve[s] as a gatekeeper to a new trial,”

13
  “Under the law-of-the-case doctrine, when a court decides upon a rule of law, that
decision should continue to govern the same issue in subsequent stages of the same case.”
ACLU v. Mukasey, 534 F.3d 181, 187 (3d Cir. 2008) (quotation marks omitted).

                                              14
and thus it is for the court to “decid[e] in the first instance whether the defendant’s

proffered ‘new evidence’ is credible.” Kelly I, 539 F.3d at 189 (quoting United States v.

McCullough, 457 F.3d 1150, 1167 (10th Cir. 2006)). In making that credibility

determination, “the district court cannot view the proffered testimony in a vacuum; it

must weigh the testimony against all of the other evidence in the record, including the

evidence already weighed and considered by the jury in the defendant’s first trial.” Id.

We noted that, based on the record before us then, we could not “be certain” that the

District Court made the credibility assessment itself or whether the District Court

“weighed Jones’s testimony against the testimony presented at Kelly’s first trial.” Id. at

190.

       Kelly I makes clear that the District Court did not necessarily find that Kelly met

the probability-of-acquittal standard. And even assuming, arguendo, that the District

Court found Jones’s testimony to be credible, it is not enough to consider the “proffered

evidence in a vacuum.” Id. at 189. For both newly discovered evidence claims and

ineffective assistance of counsel claims, courts are to consider the totality of the evidence

before a judge or jury. See Strickland, 466 U.S. at 695 (“[A] court hearing an

ineffectiveness claim must consider the totality of the evidence before the judge or

jury.”); Kelly I, 539 F.3d at 189 (noting that for newly discovered evidence claims, a

court “must weigh the testimony against all of the other evidence in the record, including

the evidence already weighed and considered by the jury in the defendant’s first trial”).

As we indicated in Kelly I, the District Court had not clearly demonstrated that it

weighed Jones’s testimony with the other evidence offered at trial, and as a result, its

                                              15
probability-of-acquittal determination was flawed. Therefore, we reject Kelly’s argument

that, under the law of the case doctrine, the District Court previously found him to meet

the higher probability-of-acquittal standard.

                                                C.

       Finally, Kelly argues that the District Court should be instructed on remand to (1)

make credibility findings as to the testimony of Kelly and his trial counsel, and then (2)

decide in the first instance whether Kelly has shown trial counsel’s performance to be

deficient under Strickland. Although we are remanding to the District Court to re-

examine whether Kelly was prejudiced under Strickland, we will not instruct the District

Court to make credibility findings as to counsel and Kelly, or necessarily reach the

performance prong on Strickland. The Supreme Court has instructed:

              [T]here is no reason for a court deciding an ineffective
              assistance claim to . . . address both components of the
              inquiry if the defendant makes an insufficient showing on
              one. In particular, a court need not determine whether
              counsel’s performance was deficient before examining the
              prejudice suffered by the defendant as a result of the alleged
              deficiencies. The object of an ineffectiveness claim is not to
              grade counsel’s performance. If it is easier to dispose of an
              ineffectiveness claim on the ground of lack of sufficient
              prejudice, which we expect will often be so, that course
              should be followed.

Strickland, 466 U.S. at 697. If the District Court on remand determines that Kelly has not

demonstrated a “reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at 694, then the District Court

need not reach the performance prong of Strickland. Of course, if the District Court were



                                                16
to find that Kelly has demonstrated prejudice, then it should make all necessary

credibility findings and evaluate trial counsel’s performance.


                                            IV.

       For the foregoing reasons, we will vacate the District Court’s order denying

Kelly’s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, and

we will remand to the District Court for further proceedings consistent with this opinion.




                                            17
