                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 07-15486                ELEVENTH CIRCUIT
                                                            SEPT 19, 2008
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                  D. C. Docket Nos. 07-20280-CV-CMA
                           02-20786-CR-CMA

JOSEPH WILLIAMS,

                                                        Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                         (September 19, 2008)

Before HULL, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
      Joseph Williams, a federal prisoner proceeding pro se, appeals the denial of his

motion to vacate his sentence, filed pursuant to 28 U.S.C. § 2255. We granted a

certificate of appealability on the limited issue of:

      Whether the district court erred in denying Williams’s claim that counsel
      was ineffective for failing to timely advise the court that a defense
      witness had been threatened and intimidated by the government.

On appeal, Williams argues under Strickland v. Washington, 466 U.S. 668 (1984),

that his counsel committed unprofessional errors by failing to timely inform the trial

court of alleged intimidation of a defense witness, which denied him his Sixth

Amendment right to call witnesses in his own defense, and that these errors resulted

in prejudice to his case. After careful review, we affirm.

      We review an ineffective assistance of counsel claim de novo. Chandler v.

United States, 218 F.3d 1305, 1312 (11th Cir. 2000) (en banc). When a convicted

defendant claims that his counsel’s assistance was ineffective, the defendant must

show that (1) counsel’s performance was deficient, and (2) the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687. “For performance to be

deficient, it must be established that, in light of all the circumstances, counsel’s

performance was outside the wide range of professional competence.” Putman v.

Head, 268 F.3d 1223, 1243 (11th Cir. 2001). Courts must be highly deferential in

reviewing counsel’s performance, and indulge the strong presumption that counsel’s

                                           2
performance was reasonable. Chandler, 218 F.3d at 1314. “[B]ecause counsel’s

conduct is presumed reasonable, for a petitioner to show that the conduct was

unreasonable, a petitioner must establish that no competent counsel would have taken

the action that his counsel did take.” Id. at 1315. Accordingly, counsel is not

incompetent so long as the particular approach taken “might be considered sound trial

strategy.” Id. at 1314 (quotation omitted). Under the prejudice prong, the 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.”

Strickland, 466 U.S. at 694.

       In the direct appeal context, we have stated that “a criminal defendant has a

constitutional right to ‘present his own witnesses to establish a defense.’” United

States v. Terzado-Madruga, 897 F.2d 1099, 1108 (11th Cir. 1990) (citations omitted).

“Threats against witnesses are intolerable. Substantial government interference with

a defense witness’ free and unhampered choice to testify violates due process rights

of the defendant.” United States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980).1 “If

such a due process violation occurs, the court must reverse without regard to

prejudice to the defendants.” Id. In a case involving a motion for a new trial based



       1
         See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting
as binding precedent all decisions of the former Fifth Circuit announced prior to October 1, 1981).

                                                3
on witness intimidation, this Court explained that, “[w]here defendants present

evidence to the district court that the government intimidated a defense witness[,] a

trial court must grant a hearing to determine whether the allegations of intimidation

are true. If the witness did not testify, and the allegations of intimidation are true, no

prejudice need be shown.” United States v. Schlei, 122 F.3d 944, 992 (11th Cir.

1997) (emphases added); Goodwin, 625 F.2d at 703 (“On this appeal we now face

unresolved claims of government intimidation of defense witnesses. If we were not

reversing the convictions on other grounds, we would be required to remand to the

district court for findings on the validity of these claims. And if proven such

violations of due process would require automatic reversal.”).

      In the habeas context, however, prejudice can only be presumed under

Strickland in three exceptional circumstances: “actual or constructive denial of

counsel altogether, certain types of state interference with counsel’s assistance, and

conflicts of interest.” Purvis v. Crosby, 451 F.3d 734, 741 (11th Cir. 2006). Because

these three circumstances are not at issue in this appeal, which involves government

intimidation of witnesses, prejudice cannot be presumed. Even Williams does not

argue to the contrary.

      Here, the government appears to have conceded the performance prong of the

Strickland test, admitting that Williams’s counsel “probably [made] a professional

                                            4
error” when he failed to advise the court during or shortly after Williams’s trial that

a potential witness, Nathaniel Blash, had failed to appear as a witness pursuant to a

court-issued subpoena and that alleged witness intimidation had occurred. Indeed,

the trial court found in ruling on the motion for a new trial that Williams’s counsel

had in fact been informed of the alleged witness intimidation before and during the

trial. Given how seriously we treat allegations of government intimidation of

witnesses, Goodwin, 625 F.2d at 703; Schlei, 122 F.3d at 992, and the lack of any

sound trial strategy justifying counsel’s failure to alert the court of such allegations

in a timely manner, we agree that “no competent counsel would have taken the action

that his counsel did take.” Chandler, 218 F.3d at 1315. We therefore hold that

Williams’s counsel performed deficiently by failing to raise the issue to the court

during or shortly after the trial.2

       Turning to the prejudice prong, Williams argues that, had his attorney

performed properly, the results of his trial proceedings would have been different, in

that: (1) if the allegation had been raised at the pre-trial stage, Blash’s testimony

would not have been “cumulative,” as it was later considered to be by the trial court;



       2
         That being said, we reject Williams’s argument that it was error for trial counsel not to have
informed the trial court of intimidation prior to the trial. See Goodwin, 625 F.2d at 703 (holding that
the “normal time” to dispose of allegations of witness intimidation is at the trial and, generally,
requests for pre-trial hearings regarding misconduct have been denied).

                                                  5
(2) the trial court would have heard from three different witnesses claiming that

police officers had intimidated them, which, if taken as true, would have resulted in

a “host of sanctions;” and (3) Blash’s testimony was not cumulative because, unlike

the other witnesses, Blash was speaking to Williams at the relevant time and would

have “corroborated the testimony of a missing witness, . . . Officer Prospere, who’d

also indicated that he did not observe Williams in possession of any black bag.”

Williams also argues that the prosecution, at trial, drew attention to Blash’s absence

on the witness stand, by asking, “What happen[ed] to this mystery man?”

       Despite these assertions, we do not agree “that 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. As an initial matter, we cannot find any

prejudice resulting from trial counsel’s failure to inform the trial court during pre-trial

proceedings, since trial counsel cannot be said to have erred in failing to do so. See

supra note 3. Likewise, we agree with the district court that no prejudice resulted

from trial counsel’s failure to inform the trial court of Blash’s alleged intimidation

during or shortly after the trial, since Blash’s testimony would have been cumulative

to that of the other witnesses. Specifically, Blash’s testimony that he had not seen

any drugs in Williams’s possession before his arrest would have been the same as

testimony presented by five other defense witnesses, and indeed, one of the testifying

                                            6
witnesses was in a similar position to observe Williams as Blash was when Williams

allegedly dropped the bag of drugs to the ground. In addition, Blash’s testimony that

he was threatened by the police not to testify against Williams would have been the

same as testimony presented by two other defense witnesses. In light of this record,

Williams has not established that there is a reasonable probability that Blash’s

testimony would have led to different result at his trial, given that the trial court and

jury had heard, and not been persuaded by, similar testimony from several of the

defense’s other witnesses. Cf. Van Poyck v. Florida Dep’t of Corrections, 290 F.3d

1318, 1324 n.7 (11th Cir. 2002) (“A petitioner cannot establish ineffective assistance

by identifying additional evidence that could have been presented when that evidence

is merely cumulative.”). Moreover, the evidence of Williams’s guilt presented at trial

was overwhelming -- he was observed leaving two different apartments, each of

which contained identity documents with Williams’s name on them and each of

which contained cocaine and marijuana packaged in exactly the same manner as the

drugs in the bag Williams allegedly dropped prior to his arrest. Accordingly, the

district court did not err in denying Williams’s § 2255 motion on the ground that he

has not satisfied Strickland’s prejudice prong.

      AFFIRMED.




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