            IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 99-10601
                                          Summary Calendar
                                          _______________



                                  UNITED STATES OF AMERICA,
                                                             Plaintiff-Appellee,
                                               VERSUS

                                CHARLES HARDIN MURPHY, JR.,
                                                             Defendant-Appellant.

                                    _________________________

                            Appeal from the United States District Court
                                for the Northern District of Texas
                                          (3:91-CR-376)
                                 _________________________
                                          April 14, 2000



Before SMITH, BARKSDALE, and                         male entered the Southwest Savings Bank,
  PARKER, Circuit Judges.                            Dallas, Texas, demanded money at gunpoint
                                                     from tellers Garrett and Alexander,1 and
JERRY E. SMITH, Circuit Judge:*                      absconded with $5,794.            Garrett and
                                                     Alexander gave detailed descriptions of the
   Charles Murphy appeals the denial of his          robber. Alexander also identified a .38 caliber
motion to vacate, set aside, or correct his          pistol, which was recovered, approximately a
sentence pursuant to 28 U.S.C. § 2255,               month later, from a Mercury Sable automobile
claiming ineffective assistance of counsel and       driven by Murphy, as either the same weapon
prosecutorial misconduct. We affirm.                 or identical to the one brandished at her during
                                                     the robbery.
                   I.
   On September 26, 1991, a clean-shaven                Darryl Neff, a bank customer, observed the
                                                     robber leave the bank and enter a blue Honda.

   *
      Pursuant to 5TH CIR. R. 47.5, the court has
                                                         1
determined that this opinion should not be                These facts are taken almost verbatim from
published and is not precedent except under the      our opinion on Murphy’s direct appeal. See
limited circumstances set forth in 5TH CIR. R.       United States v. Murphy, 996 F.2d 94 (5th Cir.
47.5.4.                                              1993).
Later on the day of the robbery, the car was           Murphy’s name, a .38 caliber short barrel
recovered a few blocks from the bank. Its              revolver that matched the one used in both
ignition had been damaged so that it could be          robberies, a police scanner with a book of
operated without a key. A police investigator          police frequencies, a collection of tools
testified that the damage to the ignition could        (including a dent puller), a pair of sunglasses,
have been accomplished with a dent puller.             and a bloody syringe located on the drivers
                                                       side of the car. Richard Crum, an FBI agent
    On October 3, 1991, a clean-shaven male            who specialized in firearms and tool mark
entered the United Savings Bank, Dallas,               identification, testified that the tool marks on
Texas, approached one of the tellers, and              the ignitions of the blue and tan Hondas could
robbed the teller at gunpoint using a .38              have been made with some of the tools found
caliber pistol. Ms. Irvin, who was in the next         in the red Honda or the Sable.
teller’s booth, gave a detailed description of
the robber. She observed the robber leave the             Floyd, who had known Murphy for ten or
building and enter a tan car. Before he exited,        more years, identified him as the robber
she activated her surveillance camera. Some            depicted in the surveillance photos. Floyd
of the money taken during the second robbery           further testified that Murphy offered him
contained an electronic tracking device                $1,000 to rent a home for Murphy in Floyd’s
concealed in a cutout of the center of some of         name and that Murphy instructed him to drive
the bills.                                             off in the Sable when the two men were
                                                       stopped.
   A light colored Honda was found
approximately one block from the United                    Several witnesses of the two robberies
Savings Bank shortly after the robbery. Its            identified Murphy as the robber of the two
ignition had been altered in a manner similar to       banks. Murphy was convicted of two counts
that of the blue Honda. On the same day as             of robbery of a financial institution in violation
the first robbery, a red Honda was stolen from         of 18 U.S.C. §§ 2113(a) and (d) and two
a location close to Southwest Savings Bank.            counts of carrying a firearm during a crime of
It was found after the second robbery, on              violence in violation of 18 U.S.C. § 924(c).
October 5, 1991, located around the corner
from Murphy’s residence. The ignition had                                     II.
been removed in a manner similar to that of               Murphy alleges six instances of ineffective
the other two cars. Found in the vehicle was           assistance of counsel and two instances of
a photograph given to Murphy by a friend, a            prosecutorial misconduct (knowingly using
beer can with Murphy’s fingerprint on it, a            perjured testimony and knowingly withholding
tracker dollar bill with the center removed, and       exculpatory identification evidence). The
a bag containing assorted screwdrivers, pliers,        district court rejected Murphy’s claims of
and a dent puller. None of the items was in            ineffective assistance on the merits and found
the vehicle before its theft.                          he was procedurally barred from raising his
                                                       claims of government misconduct.2
    Approximately one month later, a police
officer made a routine traffic stop of a                  We review ineffective assistance claims
Mercury Sable near Cap City, Texas. Murphy             under the two-prong standard articulated in
was driving, and Randy Floyd was a front seat          Strickland v. Washington, 466 U.S. 668
passenger. While the officer was performing            (1984). We have discussed the first prong as
a license and warrant check, Floyd drove the           follows:
Sable away, leaving Murphy by the roadside.
The officer pursued and overtook Floyd a
short distance down the road. Murphy fled on               2
                                                              Murphy filed his § 2255 motion before the
foot but was located and arrested the next day.        effective date of the AEDPA, so he needs no
                                                       certificate of appealability. See United States v.
   The Sable contained a rental agreement in           Carter, 117 F.3d 262, 264 (5th Cir. 1997).

                                                   2
   To obtain relief, a criminal defendant            Cir. 1983). We review findings of fact made
   must first demonstrate that counsel's             in the course of deciding an ineffectiveness
   performance was deficient. . . . The              claim for clear error but review the
   proper standard for measuring counsel’s           performance and prejudice components de
   performance under the first prong of              novo. See Motley, 18 F.3d at 1226.
   [Washington] is reasonably effective
   assistance. That is, the defendant must             Murphy raised the claims of prosecutorial
   show that counsel’s representation fell           misconduct for the first time in his § 2255
   below an objective standard of                    motion.
   reasonableness.       Our scrutiny of
   counsel’s performance must be highly                 After conviction and exhaustion or
   deferential, and we must make every                  wavier of any right to appeal, we are
   effort to eliminate the distorting effects           entitled to presume that the defendant
   of hindsight. . . . Under [Washington],              stands fairly and finally convicted. A
   there is a strong presumption that                   defendant can challenge his conviction
   counsel’s conduct falls within the wide              after it is presumed final only on issues
   range of reasonable professional                     of constitutional or jurisdictional
   assistance.                                          magnitude, and may not raise an issue
                                                        for the first time on collateral review
Motley v. Collins, 18 F.3d 1223, 1226 (5th              without showing both “cause” for his
Cir. 1994) (internal citations and quotation            procedural default, and “actual
marks omitted).                                         prejudice” resulting from the error. This
                                                        cause and actual prejudice standard
   The second Washington prong requires the             presents a significantly higher hurdle
defendant to demonstrate that counsel’s                 than the plain error standard that we
deficient performance prejudiced the defense:           apply on direct appeal.

   To satisfy the prejudice prong of                 United States v. Shaid, 937 F.2d 228, 231-32
   [Washington], the defendant must show             (5th Cir. 1991) (en banc) (internal citations
   that there is a reasonable probability            and quotation marks omitted). The “actual
   that, but for counsel’s unprofessional            prejudice” standard requires more than a
   errors, the result of the proceeding              showing of possibility of prejudice: The
   would have been different.               A        defendant must show that the trial errors
   reasonable probability is a probability           “worked to his actual and substantial
   sufficient to undermine confidence in the         disadvantage, infecting his entire trial with
   outcome. The defendant need not show              error of constitutional dimensions.” United
   that counsel's deficient conduct more             States v. Frady, 456 U.S. 152, 170 (1982).3
   likely than not altered the outcome in
   the case, [b]ut it is not enough . . . that                           III.
   the errors had some conceivable effect                                 A.
   on the outcome of the proceeding.                    Murphy first claims his counsel was
                                                     ineffective for failing to interview and
Id. (internal citations and quotation marks          investigate Modena Harvey, the sister-in-law
omitted).                                            of Murphy’s mother. Murphy claims that
                                                     Harvey could have placed Murphy at the home
   If one of the Washington prongs is
determinative, we need not consider the other.
See United States v. Kimler, 167 F.3d 889,                3
                                                             Murphy incorrectly argues both that the
893 (5th Cir. 1999). Murphy bears the burden         district court should not have considered
of demonstrating both Washington elements            procedural default and that this court should not do
by a preponderance of the evidence. See              so. See Wiggins v. Procunier, 753 F.2d 1318,
Martin v. Maggio, 711 F.2d 1273, 1279 (5th           1321 (5th Cir. 1985).

                                                 3
of Edna Murphy (Murphy’s mother) on the                      Murphy’s counsel, by affidavit, cites two
day of the October 3 robbery.                             reasons for not calling Susan to testify. First,
                                                          Murphy had given conflicting stories
    While Murphy claims his counsel never                 concerning the source of his money, and
investigated Harvey, his counsel, by affidavit,           therefore counsel believed the testimony could
asserts that he gave the government Harvey’s              constitute perjury. Second, it would not have
name as a potential alibi witness, but chose not          been strategically sound to implicate Murphy
to present her testimony because he believed it           in another felony solely to remove the limited
would contradict other alibi testimony.                   implication of guilt a jury might draw from
Murphy’s counsel did call Murphy’s mother,                possession of money and flight.
sister, and brother-in-law to establish
Murphy’s presence at Edna Murphy's home.                     Although Susan’s testimony concerning
Murphy’s allegation thus fails to demonstrate             Murphy’s mustache would have corroborated
that his counsel was deficient, and Murphy                similar testimony of Edna Murphy and Mary
further fails to demonstrate the requisite                Tartarilla, its absence does not constitute
prejudice if there were such a deficiency: The            Washington prejudice. The decision not to
potential duplicative testimony of one more               call Susan to testify to Murphy’s felonious
witness related to Murphy does not undermine              behavior of writing bad checks was a
confidence in Murphy’s convictions.4                      legitimate strategic decision: “[A]n attorney’s
                                                          strategic choices, usually based on information
                      B.                                  supplied by the defendant and gathered from a
   Murphy contends that his counsel was                   thorough investigation of the relevant law and
ineffective for not interviewing potential                facts, are virtually unchallengeable.” Bryant v.
defense witnesses and for not interviewing                Scott, 28 F.3d 1411, 1415 (5th Cir. 1994)
eyewitnesses to the crimes. The potential                 (internal quotation marks omitted).
defense witnesses are Susan Murphy
(Murphy’s estranged wife) and Anthony                        Murphy further alleges that Anthony
Tartarilla (Murphy’s friend).5                            Tartarilla would have testified to the presence
                                                          of Murphy’s mustache in early October. Once
   Susan Murphy’s affidavit states that                   again, the lack of this corroborating testimony,
Murphy had a full mustache on October1 and                given the substantial evidence of Murphy's
5. Murphy argues Susan would have testified               guilt, does not constitute Washington
that Murphy had obtained money by writing                 prejudice.
bad checks on a closed bank account, thereby
explaining Murphy’s possession of money and                   Murphy’s contention that counsel was
his reason for fleeing police.                            ineffective for failing personally to interview
                                                          every eyewitness is likewise unavailing.6
                                                          Murphy’s counsel either personally
                                                          interviewed, had an investigator interview, or
                                                          at least reviewed the reports of, every witness
       4
         Although organizationally this opinion           before that witness testified. As the district
considers each claim of ineffective assistance            court found, given the witnesses’ fairly
independently, we recognize and apply the                 consistent identification of Murphy as the
Washington prejudice element as a totality. All of        robber and the incriminating evidence found in
Murphy’s claims of prejudice, considered together,        the red Honda and Sable, it was not
do not undermine confidence in his convictions.
                                                          unreasonable for counsel to decide that further
   5
     Murphy also alleges ineffective assistance for
failure to interview Mary Tartarilla, but Mary was
                                                                   6
interviewed by Murphy’s counsel prior to her                         This allegation is based solely on
testimony at trial. She testified that Murphy             eyewitnesses’ testimony, in response to questioning
always wore a mustache, including in late October         by Murphy’s counsel, that they had never spoken
1991.                                                     to his counsel previously.

                                                      4
investigation of eyewitnesses was unnecessary.                                    D.
Further, Murphy fails to assert any prejudice               Murphy alleges that his counsel was
that occurred because of the alleged failure to          ineffective for failing to investigate the relevant
interview.                                               law and in failing to present available witnesses
                                                         supporting his chosen line of defense. The
                      C.                                 chosen defense was that Murphy did not
   Murphy avers that counsel was ineffective             commit the robberies and that the surveillance
for failing to object during the cross-                  photographs were actually the best evidence
examination of the final defense witness, FBI            for the defense because Murphy looked
Special Agent Skillestad, who identified a               considerably different from the individual
photograph as the photograph of Murphy that              depicted in the photographs.               Counsel
bank tellers had identified as depicting the             presented this defense, encouraged the jury to
robber. Because no witness had so testified              compare the surveillance photographs with the
during the government’s case-in-chief, Murphy            appearance of Murphy at trial, argued that
argues that this in effect permitted the                 eyewitnesses’ descriptions were inconsistent,
government to reopen its case by exceeding               presented Murphy’s alibi for October 3, and
the scope of direct examination.                         presented evidence that Murphy had not been
                                                         clean-shaven for years.
    Murphy’s counsel argues that not objecting
was a strategic decision to avoid drawing                    What counsel failed to do was to ask
undue attention to the testimony. Even were              Murphy’s mother, sister, and brother-in-law
such a decision unreasonable, Murphy fails to            whether Murphy was the person depicted in
demonstrate prejudice, because there is no               the photographs. Given their testimony of
reason to believe the court would not have               Murphy’s alibi, and that Murphy wore a
allowed the government to reopen its case to             mustache, this failure is not sufficient to
elicit the testimony.                                    demonstrate Washington prejudice. Counsel’s
                                                         decision to rely primarily on the jurors’ own
   Murphy also complains because his counsel             comparison of the surveillance photographs
did not object when Skillestad gave the                  and Murphy’s presence at trial was not
possibly erroneous testimony that Rukshana               unreasonable, as evidenced by the fact that a
Khan, a teller involved in the October 3                 teller who identified a photograph of Murphy
robbery, was shown six photographs and                   could not identify him in the courtroom.9
eliminated four. Khan actually testified that
she was shown around six to eight                                                E.
photographs, and narrowed it down to two.7                  Murphy contends that his counsel was
This minor discrepancy did not prejudice                 ineffective for failing to object to prejudicial
Murphy,8 and therefore he has failed to                  evidence, a two-sided fingerprint card bearing
demonstrate Washington prejudice.                        Murphy's fingerprints. The front of the card
                                                         contained four of Murphy’s alleged aliases,
                                                         and the back bore the notation “armed and
                                                         dangerous.” The government introduced the
   7
                                                         card to show that a fingerprint found on a beer
     Another agent’s deposition states that Khan         can in the red Honda was Murphy’s, but the
was shown eight photographs. Khan’s testimony
regarding the number of photographs was as
follows: “I don't remember exactly but it was
                                                             9
around six to eight. I am not sure but I narrowed               Murphy likewise contends that his counsel
it down to two.”                                         was ineffective for not obtaining an expert to
                                                         compare his appearance to the depiction in
       8
       This is especially true given the fact that       surveillance photographs.        Given the stark
Murphy’s counsel did verify on redirect that             difference in appearance, it was not unreasonable
Skillestad was not the agent who presented the           to present this argument to the jury without expert
photo-array to Khan.                                     evidence.

                                                     5
government substituted a photocopy of the                   550 F.2d 1036, 1048 (5th Cir. 1977), in which
front of the card to be given to the jury.                  this court held evidence insufficient to warrant
                                                            giving a flight instruction on retrial. We noted
    The front of the card also contained                    that the probative value of flight as an
statistical information concerning Murphy, in               admission by conduct was dependent on, inter
particular that he was a white male, 5'9" tall,             alia, the inference from consciousness of guilt
who weighed 175 pounds. Murphy’s counsel                    to consciousness of guilt concerning the crime
wanted this evidence before the jury to                     charged. See id. at 1049. Where the
impeach the reports of eyewitnesses that                    defendant could be fleeing based on
differed from these statistics. Even were it                consciousness of guilt of a crime other than
unreasonable for counsel not to require the                 that before the jury, a flight instruction may be
aliases to be blocked out or otherwise                      improper. See id. at 1050.
removed from the exhibit, Murphy did not
suffer Washington prejudice.                                    In United States v. Kalish, 690 F.2d 1144,
                                                            1155 (5th Cir. 1982), we noted that “we have
                       F.                                   consistently held evidence of flight to be
    Murphy argues that counsel was ineffective              relevant evidence,” and thus “our standard of
for failing to investigate circumstances                    review is whether the trial judge has abused his
regarding his flight from police after he and               discretion in determining that the probative
Floyd were stopped in a routine traffic stop.               value of the evidence outweighs the danger of
Prior to trial, Murphy’s counsel asked Murphy               unfair prejudice.” We distinguished Myers as
whether there was evidence that could                       articulating the test for when a flight
establish other reasons why Murphy might                    instruction is proper, as opposed to the test for
have fled.       Murphy responded in the                    when evidence of flight is admissible. See id.
affirmative, namely that (a) there were                     at 1156. Moreover, we made plain that
substantial amounts of heroin and cocaine in                whereas on the record in Myers a flight
the car, (b) Murphy had recently learned that               instruction was not proper, it can be proper
there was an outstanding warrant for his arrest             even when the defendant may have a guilty
resulting from a parole violation, and                      conscience for multiple offenses. See id.
(c) Murphy had written a large number of bad                at 1156-57.
checks on a closed account.
                                                                There was circumstantial evidence that
    Murphy’s counsel did not present any of                 Murphy’s flight was related to the robberies,
this evidence, and the court gave a flight                  for investigators had spoken with members of
instruction10 as part of the jury charge. His               Murphy’s family, and the Sable contained
counsel claims that it was a strategic decision             relevant evidence of the robberies (tools and
not to introduce evidence of the several other              the .38 caliber pistol). Further, even were
crimes committed by Murphy solely to avoid                  Murphy’s counsel deficient in not presenting
the inference of guilt from evidence of flight.             the other-crimes evidence, the error did not
Counsel instead argued that a flight instruction            rise to the level of Washington prejudice.11
was improper because there was no direct
evidence that Murphy knew he was a suspect
in the bank robberies. Murphy contends that
it was ineffective assistance not to have raised
the other-crimes evidence with the court.

   Murphy cites United States v. Myers,                        11
                                                                 Murphy also argues that the court abused its
                                                            discretion by ruling without an evidentiary hearing.
                                                            No hearing was required, because the existing
   10
      A “flight instruction” is an instruction on the       documentation conclusively demonstrates that
inference that flight potentially demonstrates a            Murphy is not entitled to relief. See United States
consciousness of guilt.                                     v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990).

                                                        6
                      IV.                                 defense strategy was that the jury could
   Murphy argues that newly discovered                    recognize that he was not the person depicted
evidence proves that the government                       in surveillance photographs, the absence of this
knowingly used perjured testimony. He                     information did not prejudice Murphy’s trial.
suggests also that the new evidence shows the
government knowingly withheld exculpatory                    AFFIRMED.13
identification evidence.

                        A.
    The allegedly perjured testimony was given
by Skillestad and Floyd. Skillestad may have
mistakenly testified that Khan was shown six
photographs, if she was actually shown eight.
Floyd mistakenly testified that he had a prior
conviction for conspiracy to import controlled
substances, when his conviction actually was
for conspiracy to obtain a controlled substance
by fraud.12 These de minimis mistakes do not
rise to the “actual prejudice” standard required
by Shaid.

                     B.
   Murphy contends the government
knowingly withheld exculpatory evidence that
Donald Morris, Alan Duke, and Carlos
Kirkland were shown bank surveillance
photographs and stated that Murphy was not
the one depicted therein. Murphy likewise
contends that the government used
unconstitutionally suggestive identification
procedures with Janieth Moore and Donald
Morris.

   Morris, Duke, and Kirkland are friends of
Murphy’s who were not eyewitnesses to the
robberies or any other relevant events. Moore
and Morris did not testify, and Murphy does
not allege any link between the identification
procedures used with those individuals and the
identification procedures used for those who
did testify.

   Even assuming Murphy could satisfy the
“cause” bar of procedural default, he fails to
demonstrate actual prejudice resulting from
the alleged errors. Given the substantial
evidence of his guilt, and further that the

  12                                                           13
    Floyd also testified that he had been convicted               Murphy’s motions for oral argument by
of burglary, possession of cocaine, and theft             teleconference and for appointment of counsel to
offenses.                                                 conduct oral argument are DENIED.

                                                      7
