                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 13-3142
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    LACEY GRAVES,
                                              Appellant
                                     _____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. No. 2-06-cr-00095-01)
                        District Judge: Honorable Jan E. DuBois
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 26, 2015

      Before: GREENAWAY, JR., KRAUSE, and GREENBERG, Circuit Judges.

                                  (Filed: May 28, 2015)

                                    _______________

                                       OPINION
                                    _______________





       This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
KRAUSE, Circuit Judge.

       Lacey Graves, who was convicted by a jury of bank robbery, appeals the District

Court’s decision to deny his motion to vacate his sentence pursuant to 28 U.S.C. § 2255.

We will vacate the District Court’s order in part, affirm in part, and remand for further

consideration in light of our recent decision in United States v. Wright, 777 F.3d 635 (3d

Cir. 2015).

                                              I.

       Graves was tried three times for bank robbery, in violation of 18 U.S.C. § 2113(d),

and for use of a firearm during the commission of a violent felony, in violation of 18

U.S.C. § 924(c). The District Court declared a mistrial in the first two trials after the jury

failed to reach a verdict. At the third trial, the jury found Graves guilty of the bank

robbery charge and acquitted him of the firearm charge, and the District Court sentenced

him to a term of 180 months’ imprisonment, a term of supervised release of five years,

restitution of $6,421, and a special assessment of $100. Graves appealed the conviction,

and we affirmed. See United States v. Graves, 373 F. App’x 229, 232-34 (3d Cir. 2010).

       Graves subsequently filed a motion under 28 U.S.C. § 2255, arguing that his trial

counsel did not provide effective assistance, as defined by Strickland v. Washington, 466

U.S. 668 (1984), because they failed to call Leslie Neal as a witness and failed to make a

motion to suppress items seized from Neal’s home.1 The District Court denied Graves’


1
       Graves previously had argued that his counsel was ineffective for failing to
acquire and authenticate the original bank surveillance tapes, but withdrew this claim at a
hearing before the District Court.

                                              2
§ 2255 motion, but granted a certificate of appealability on the suppression issue. We

expanded the certificate of appealability to include counsel’s failure to call Neal as a

witness. We will address these two Strickland issues in turn.

         The District Court had jurisdiction under 18 U.S.C. § 3231 and 28 U.S.C. § 2255,

and we have jurisdiction pursuant to 28 U.S.C. § 1291. In a § 2255 proceeding, we

exercise plenary review over the District Court’s legal conclusions and apply a clear error

standard to its findings of fact. United States v. Travillion, 759 F.3d 281, 289 (3d Cir.

2014).

                                               II.

         To prove ineffective assistance of counsel, a criminal defendant must show (1)

that counsel’s performance was deficient, and (2) that the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687. Our review of counsel’s

performance “must be highly deferential” so as “to eliminate the distorting effects of

hindsight,” and we therefore “must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Id. at 689. To

establish prejudice, “[t]he defendant must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

                                               A.

         First, Graves argues that he was deprived of his right to effective assistance

because counsel failed to call his girlfriend, Leslie Neal, as a witness. The District Court

held that this Strickland claim failed because Graves’ counsel “made a strategic decision

                                               3
not to call Neal as a witness” and that “[t]his decision was not so unreasonable as to be

constitutionally deficient.” United States v. Graves, 951 F. Supp. 2d 758, 775 (E.D. Pa.

2013). We agree.

       Strickland requires that a defendant “overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.” 466 U.S.

at 689 (internal quotation marks omitted). If the Government “can show that counsel

actually pursued an informed strategy (one decided upon after a thorough investigation of

the relevant law and facts),” the effectiveness of counsel’s assistance is “virtually

unchallengeable.” Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005).

       The Government argues, convincingly, that Graves’ counsel opted not to call

Leslie Neal as a witness because her testimony harmed Graves’ case more than it helped.

Graves’ counsel had observed Neal’s testimony at the first two trials and determined that

she lacked credibility as a witness. Neal had testified previously that, on the day of the

robbery, she dropped Graves at a Walmart near the bank and drove to meet a drug dealer

to purchase marijuana for Graves. Unable to find the drug dealer and wanting to know

the time, she pulled into the bank parking lot, covered her head with a scarf to protect

herself from the rain, and looked through the bank’s glass doors in search of a clock on

the wall.2 The Government offered the alternative explanation that Neal had parked in

the bank’s parking lot, covered her face with a scarf to obscure her identity, and peered in


2
       Neal testified at a hearing before the District Court that, had she been called as a
witness at the third trial, her testimony would have been substantially similar to her
testimony from the first two trials.

                                              4
to the bank’s windows to case the bank for Graves’ robbery. In support, the Government

offered the eyewitness testimony of a bank teller who had been so unnerved by Neal’s

behavior that she had tried to copy down Neal’s license plate number.

       Graves argues that Leslie Neal would have rebutted other witnesses’ testimony

and provided an alternative account of Graves’ actions at the time of the robbery, relying

on cases holding that the failure to call a crucial alibi witness or to investigate the

existence of an alibi witness might constitute deficient performance. See, e.g., Adams v.

Bertrand, 453 F.3d 428, 436-38 (7th Cir. 2006). The record here, however, does not

support this argument and renders these cases inapposite. Graves’ defense at the third

trial focused on the unreliability of eyewitness identifications of the masked robber.

Neal’s testimony, assuming it was consistent with her testimony from the two previous

trials, would have compromised this defense by placing Graves in close physical

proximity to the bank without otherwise accounting for his actions at the time. The

record therefore demonstrates that Graves’ counsel opted not to call Neal based on an

informed, reasoned belief that her testimony would hurt a potentially viable defense and

that counsel made a reasonable strategic decision not to call her as a witness for the third

trial. Counsel’s decision thus cannot be deemed deficient under Strickland.

                                              B.

       Second, Graves argues that his trial counsel provided ineffective assistance

because of their failure to move to suppress evidence found in Neal’s home based on the




                                               5
search warrant’s lack of particularity.3 That evidence included Graves’ New Balance

sneakers, which a forensic examiner with the Federal Bureau of Investigation with

specialized training in shoeprint examinations testified could have been responsible for

the footwear impressions found at the crime scene, as well as purchase receipts totaling

$226.03.

       The District Court held that Graves failed to prove effective assistance because,

although it concluded that counsel was deficient in failing to move to suppress a facially

defective warrant, Graves did not prove prejudice.4 Specifically, the District Court held

that (1) counsel’s motion to suppress would have been granted under our then-existing

case law, Graves, 951 F. Supp. 2d at 766 (citing Groh, 540 U.S. at 563-65); but

concluded that (2) the jury would have convicted Graves in any event on the basis of the

other evidence introduced at trial, so there was no “reasonable probability that, without

that evidence, Graves would not have been found guilty.” Graves, 951 F. Supp. 2d at

775.



3
      Graves’ counsel had moved to suppress on probable cause grounds, but had not
argued that the search warrant lacked particularity.
4
       In holding that counsel’s performance was deficient, the District Court relied
solely on Groh v. Ramirez, 540 U.S. 551, 558 (2004), which held that suppression was
required where “the warrant did not describe the items to be seized at all.” However, the
warrant in Graves’s case, in contrast, merely failed to expressly incorporate the attached
affidavit. Moreover, between the Supreme Court’s decision in Groh and the time of
Graves’ trial, we declined to suppress under Groh where the warrant was not so
fundamentally flawed. E.g., United States v. Yusuf, 461 F.3d 374, 393-94 (3d Cir. 2006).
Thus, although we resolve Graves’s ineffective assistance claim on other grounds, we are
doubtful that the performance of the highly experienced defense counsel in this case
would be deemed deficient even under our earlier case law.
                                             6
       The Government asks us to affirm on the second part of the District Court’s

rationale, i.e., even assuming a motion to suppress had been made and granted, there was

no reasonable probability of a verdict other than guilty. We cannot agree.5 Having

elicited the testimony of the FBI expert linking the sneakers to the shoe prints found at

the bank, the Government reiterated the importance of the FBI expert’s testimony in its

closing argument, stating that the sneakers were “valuable” evidence because they were

“a match” with footprints found at the scene of the crime, though it conceded that they

were not an “exclusive match.”6 (Supp. App. 615-16.) Further, the Government used the

sneakers to tie Graves to Leslie Neal, who it alleged had cased the bank and then driven

off in Graves’ car. The fact that Graves’ sneakers were found at Neal’s apartment

strengthened the Government’s argument that Graves entrusted Neal with casing the bank

and driving his car—the same car that had been identified by a partial license plate

number at the scene of the crime and that the Government asserted Neal had driven away

after casing the bank. The New Balance sneakers thus played a significant role in the

Government’s case, and even the Government concedes on appeal that the evidence from

the search of Neal’s home was “certainly probative.” Appellee’s Br. 33.

       We must evaluate the prejudicial effect of counsel’s performance “in light of the

totality of evidence at trial: a verdict or conclusion only weakly supported by the record

5
      We may examine Strickland’s two prongs in whatever order is most practical. See
Gov’t of V.I. v. Vanterpool, 767 F.3d 157, 165 n.8 (3d Cir. 2014).
6
       In determining the impact of evidence on a jury verdict for our analysis of the
prejudice prong, we have observed that the Government’s “closing argument is
revealing.” Grant v. Lockett, 709 F.3d 224, 237 (3d Cir. 2013).

                                             7
is more likely to have been affected by errors than one with overwhelming record

support.” Grant, 709 F.3d at 235 (internal quotation marks omitted). While the District

Court may well be correct that the evidence in question did not have a “strong impact” on

the trial, it was also correct that this case was a quintessential example of a “close case.”

Graves, 951 F. Supp. 2d at 774. Indeed, it was such a close case, with the first two trials

ending with hung juries, that even a weak impact may well have altered the outcome.

Thus, given the role the sneakers played in the Government’s case, we conclude, contrary

to the District Court, that Graves satisfied his burden to show “a reasonable probability

that . . . the result of the proceeding would have been different.”7 Strickland, 466 U.S. at

694. That conclusion, however, assumes that a motion to suppress would have been

granted, so we turn now to the validity of that assumption.

       In Herring v. United States, 555 U.S. 135, 144 (2009), the Supreme Court

expanded the good faith exception to the exclusionary rule by holding that evidence is

suppressed when police behavior in violation of the Fourth Amendment is “deliberate,

reckless, or grossly negligent,” but not when it is the result of simple, isolated negligence.

Id. at 147-48. The District Court identified a circuit split as to whether Herring applied

to facially invalid warrants and noted “competing Third Circuit interpretations” in Virgin

Islands v. John, 654 F.3d 412, 418 (3d Cir. 2011)—which the District Court

characterized as holding that a search based on a facially invalid search warrant per se

involves conduct that is deliberate, reckless, or grossly negligent—and United States v.

7
      We agree with the District Court, however, that the evidence of $226.03 of
purchase receipts did not have any effect on the outcome of the trial given that the
Government also introduced receipts for over $1,300.00 found in Graves’ car.
                                              8
Wright, 493 F. App’x 265, 272 (3d Cir. 2012) (“Wright I”)—a non-precedential opinion

holding that the “assumption that a facially invalid warrant automatically triggered a per

se application of the exclusionary rule” without assessing the officer’s culpability was

“erroneous.” Graves, 951 F. Supp. 2d at 769-72. Recognizing that Wright I was “not

binding precedent in this circuit,” the District Court concluded it was bound to follow

John, and accordingly held that the evidence would have been suppressed regardless of

the officer’s mental state. Id. at 772-74 (quoting Kolkevich v. Att’y Gen., 501 F.3d 323,

331 n.5 (3d Cir. 2007)).

       We rejected that approach in a precedential opinion, however, when the Wright

case returned to us on a subsequent appeal. United States v. Wright, 777 F.3d 635 (3d

Cir. 2015) (“Wright II”).8 Presented with facts very similar to Graves’ case, we held that

even if a warrant is facially invalid, courts must examine the totality of the circumstances

to assess if the officer was “sufficiently culpable for the costs of suppression to outweigh

its benefits.” Id. at 639, 642; see also United States v. Franz, 772 F.3d 134, 144-47 (3d

Cir. 2014). While the District Court did not have the benefit of Wright II when it reached

its decision, our opinion in that case makes clear that an individual officer’s mental state

is relevant and that a suppression motion should be granted only if the officer acted

deliberately, recklessly, or with gross negligence. 777 F.3d at 638. Wright II also

instructs District Courts evaluating an officer’s culpability to consider (1) the extent to


8
       We consider current developments in the law in assessing Strickland’s prejudice
prong so as to determine whether counsel’s performance “deprive[s] the defendant of any
substantive or procedural right to which the law entitles him.” See Lockhart v. Fretwell,
506 U.S. 364, 372 (1993).
                                              9
which the violation undermined the purposes of the Fourth Amendment: assuring in

writing that the magistrate found probable cause to search and seize the items mentioned,

preventing “general searches,” and informing the subject of the search of the scope of the

search; and (2) what the Government gained from the violation. Id. at 640.

       On remand following Wright I, the District Court made findings that the officers’

“failure to review the warrant before executing it was a ‘simple mistake’ that conferred

no benefit on the Government and amounted at most to negligence.” Id. at 638. In

affirming, we observed that the magistrate judge had found probable cause to search for

and seize every item listed in the affidavit; that it was not a “general search” because the

officer who filled out the warrant ensured that the officers complied with the warrant; and

that the Government did not gain anything from the violation because it would have

seized and presented at trial the same evidence if the warrant were valid. Id. at 640-42.

Thus, even though the subject of the search in that case had not been informed of its

scope because the affidavit was not attached to the warrant, we held the relevant

considerations weighed in favor of the officer and suppression was not warranted. Id. at

641-42.

       Here, the record also strongly indicates that the officer’s conduct was merely

negligent. Although the section on the face of the warrant describing the property to be

seized was left blank, an attachment accompanying the warrant listed the items to be

seized, including “shoes consistent with footprints recovered from crime scene” (App.

217); a magistrate judge reviewed the warrant and authorized the search; and the FBI

agent who had completed the warrant subsequently searched Neal’s home, confining his

                                             10
search to the items in the attachment. Moreover, the Government has represented that, if

permitted to supplement the record in the District Court, it would establish that the

attachment also was presented to the magistrate judge and, subsequently, to the occupant

of Neal’s home in connection with the search. Because the District Court erroneously

concluded the officers’ mental state was irrelevant, however, it did not make findings of

fact concerning the officers’ culpability. We therefore will remand in light of Wright II

for the District Court to undertake such fact finding in the first instance.9

                                              III.

       In sum, we will vacate the District Court’s order denying Graves’ § 2255 motion,

affirm the District Court’s holding that Graves was not deprived of his right to effective

assistance because his counsel failed to call Neal as a witness, and remand to the District

Court so it may assess the officer’s culpability as required by Wright II.




9
        Graves argues in the alternative that even if we determine that he is not entitled to
relief on the basis of his Strickland claims, that his counsel’s failure to call Neal as a
witness and failure to object to the search warrant’s lack of particularity together
constituted cumulative error that “undermined the fundamental fairness of [Graves’] trial
and denied him the constitutional right to due process.” Appellant’s Br. at 35 (quoting
Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008)). This argument fails because we have
concluded that counsel’s decision not to call Neal as a witness was not deficient, and
cumulative error analysis only applies when we identify more than one error. See
Williams v. Superintendent, SCI Greene, No. 11-4319, 2012 WL 6057929, at *2 (E.D. Pa.
Dec. 4, 2012).
                                              11
