F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 21 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-7032 (E.D. Okla.) JERRY L. GRIST, (D.Ct. No. 97-CV-168)
Defendant-Appellant. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Jerry Lee Grist appeals the district court’s decision dismissing
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. his motion filed under 28 U.S.C. § 2255 claiming ineffective assistance of
counsel. We grant Mr. Grist’s certificate of appealability 1 and affirm the decision
of the district court.
In 1986, a jury convicted Mr. Grist of multiple criminal counts arising out
of an indictment involving a car theft operation. We affirmed his conviction and
sentence on direct appeal. Mr. Grist served his sentence, and after his release, a
jury convicted him of other criminal activity in 1994. The district court used his
1986 conviction to enhance his 1994 sentence.
Thereafter, Mr. Grist filed his § 2255 motion claiming ineffective
assistance of counsel in his 1986 case due to an alleged conflict of interest arising
out of his attorney’s joint representation of him and one of the other co-
defendants, Lloyd (a/k/a Loyd) Callicoat. Specifically, Mr. Grist claimed his
attorney, Duane Miller, improperly failed to contact or call Mr. Callicoat as a
witness on his behalf for the purpose of impeaching the testimony of Ralph Crow
1 The district court made no ruling on Mr. Grist’s request for a certificate of appealability. Under our Emergency General Order of October 1, 1996, we deem the district court’s failure to issue a certificate of appealability within thirty days after filing of the notice of appeal as a denial of a certificate. See United States v. Riddick, 104 F.3d 1239, 1241 n. 2 (10th Cir. 1997), overruled on other grounds, United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998).
-2- (a/k/a Crowe), who testified he delivered stolen vehicles to Mr. Grist at Mr.
Callicoat’s business. Mr. Grist claimed his attorney did not want to involve Mr.
Callicoat after getting the charges against Mr. Callicoat dismissed.
The district court conducted an evidentiary hearing to determine whether a
conflict of interest existed. 2 After hearing the witnesses, the district court
prepared a thorough and well-reasoned decision, concluding Mr. Grist failed “to
establish ineffective assistance on the part of his trial counsel based on conflict of
interest.” In so holding, the district court noted the parties offered conflicting
testimony at the hearing as to Mr. Miller’s reasons for not having Mr. Callicoat
testify. In resolving this conflict, the district court credited Mr. Miller’s
testimony that he asked Mr. Callicoat to testify on Mr. Grist’s behalf, but Mr.
Callicoat stated he did not want to testify, and if forced to, his testimony would be
detrimental to Mr. Grist. According to Mr. Miller, he relayed Mr. Callicoat’s
comments to Mr. Grist, advising him not to seek Mr. Callicoat’s testimony, and
Mr. Grist agreed with that advice. The district court concluded Mr. Miller did not
act out of a desire to protect Mr. Callicoat at Mr. Grist’s expense, but rather,
2 In his § 2255 motion, Mr. Grist raised other grounds for ineffective assistance of counsel which the district court dismissed, and we affirmed. United States v. Grist, No. 97-7124, 1998 WL 536386 (10th Cir. Aug. 18, 1998) (unpublished disposition). However, we remanded the issue of conflict of interest to the district court for an evidentiary hearing. Id.
-3- made a reasoned determination as an experienced trial attorney about the efficacy
of Mr. Callicoat’s testimony, based upon: (1) Mr. Callicoat’s reluctance to
testify; (2) Mr. Callicoat’s warning his testimony would be detrimental; and (3)
Mr. Callicoat’s evasive grand jury responses which contradicted a Federal Bureau
of Investigation 302 investigative report containing Mr. Callicoat’s inculpatory
statements against Mr. Grist. The district court also noted it was unclear how
calling Mr. Callicoat to testify on behalf of Mr. Grist would jeopardize Mr.
Callicoat since he continued to deny involvement in the criminal activity, other
than knowing about Mr. Grist’s activities as outlined in the investigative report.
On appeal, Mr. Grist raises the same conflict of interest argument raised in
his § 2255 motion. The question of whether Mr. Miller’s joint representation of
Mr. Grist and Mr. Callicoat involved a conflict of interest is a mixed question of
law and fact. Edens v. Hannigan, 87 F.3d 1109, 1113 (10th Cir. 1996) (citing
Strickland v. Washington, 466 U.S. 668, 698 (1984)). We review de novo the
district court’s determination of whether an actual conflict existed, and review for
clear error the district court’s resolution of the underlying facts, id., mindful of
our obligation to give due regard to the district judge’s determination of the
credibility of witnesses, weight afforded their testimony, and reasonable
inferences and conclusions drawn therefrom. United States v. Gama-Bastidas,
-4- 142 F.3d 1233, 1239-40 (10th Cir. 1998). In order to establish ineffective
assistance of counsel, Mr. Grist must show his counsel’s performance was
deficient and the deficiency prejudiced his defense. United States v. Martin, 965
F.2d 839, 842 (10th Cir. 1992).
However, special considerations apply in conflict of interest cases. 965
F.2d at 842. If Mr. Grist can show a conflict of interest actually affected the
adequacy of his representation, he will not need to demonstrate prejudice in order
to obtain relief. Id. In order to establish an actual conflict, the burden is on Mr.
Grist to show specific instances to support his contention of an actual conflict
adverse to his interest. Id. Generally, an attorney’s decision on whether to call a
particular witness is a tactical decision, and thus, a matter of discretion for trial
counsel. United States v. Snyder, 787 F.2d 1429, 1432 (10th Cir.) (quotation
marks and citation omitted), cert. denied, 479 U.S.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 21 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-7032 (E.D. Okla.) JERRY L. GRIST, (D.Ct. No. 97-CV-168)
Defendant-Appellant. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Jerry Lee Grist appeals the district court’s decision dismissing
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. his motion filed under 28 U.S.C. § 2255 claiming ineffective assistance of
counsel. We grant Mr. Grist’s certificate of appealability 1 and affirm the decision
of the district court.
In 1986, a jury convicted Mr. Grist of multiple criminal counts arising out
of an indictment involving a car theft operation. We affirmed his conviction and
sentence on direct appeal. Mr. Grist served his sentence, and after his release, a
jury convicted him of other criminal activity in 1994. The district court used his
1986 conviction to enhance his 1994 sentence.
Thereafter, Mr. Grist filed his § 2255 motion claiming ineffective
assistance of counsel in his 1986 case due to an alleged conflict of interest arising
out of his attorney’s joint representation of him and one of the other co-
defendants, Lloyd (a/k/a Loyd) Callicoat. Specifically, Mr. Grist claimed his
attorney, Duane Miller, improperly failed to contact or call Mr. Callicoat as a
witness on his behalf for the purpose of impeaching the testimony of Ralph Crow
1 The district court made no ruling on Mr. Grist’s request for a certificate of appealability. Under our Emergency General Order of October 1, 1996, we deem the district court’s failure to issue a certificate of appealability within thirty days after filing of the notice of appeal as a denial of a certificate. See United States v. Riddick, 104 F.3d 1239, 1241 n. 2 (10th Cir. 1997), overruled on other grounds, United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998).
-2- (a/k/a Crowe), who testified he delivered stolen vehicles to Mr. Grist at Mr.
Callicoat’s business. Mr. Grist claimed his attorney did not want to involve Mr.
Callicoat after getting the charges against Mr. Callicoat dismissed.
The district court conducted an evidentiary hearing to determine whether a
conflict of interest existed. 2 After hearing the witnesses, the district court
prepared a thorough and well-reasoned decision, concluding Mr. Grist failed “to
establish ineffective assistance on the part of his trial counsel based on conflict of
interest.” In so holding, the district court noted the parties offered conflicting
testimony at the hearing as to Mr. Miller’s reasons for not having Mr. Callicoat
testify. In resolving this conflict, the district court credited Mr. Miller’s
testimony that he asked Mr. Callicoat to testify on Mr. Grist’s behalf, but Mr.
Callicoat stated he did not want to testify, and if forced to, his testimony would be
detrimental to Mr. Grist. According to Mr. Miller, he relayed Mr. Callicoat’s
comments to Mr. Grist, advising him not to seek Mr. Callicoat’s testimony, and
Mr. Grist agreed with that advice. The district court concluded Mr. Miller did not
act out of a desire to protect Mr. Callicoat at Mr. Grist’s expense, but rather,
2 In his § 2255 motion, Mr. Grist raised other grounds for ineffective assistance of counsel which the district court dismissed, and we affirmed. United States v. Grist, No. 97-7124, 1998 WL 536386 (10th Cir. Aug. 18, 1998) (unpublished disposition). However, we remanded the issue of conflict of interest to the district court for an evidentiary hearing. Id.
-3- made a reasoned determination as an experienced trial attorney about the efficacy
of Mr. Callicoat’s testimony, based upon: (1) Mr. Callicoat’s reluctance to
testify; (2) Mr. Callicoat’s warning his testimony would be detrimental; and (3)
Mr. Callicoat’s evasive grand jury responses which contradicted a Federal Bureau
of Investigation 302 investigative report containing Mr. Callicoat’s inculpatory
statements against Mr. Grist. The district court also noted it was unclear how
calling Mr. Callicoat to testify on behalf of Mr. Grist would jeopardize Mr.
Callicoat since he continued to deny involvement in the criminal activity, other
than knowing about Mr. Grist’s activities as outlined in the investigative report.
On appeal, Mr. Grist raises the same conflict of interest argument raised in
his § 2255 motion. The question of whether Mr. Miller’s joint representation of
Mr. Grist and Mr. Callicoat involved a conflict of interest is a mixed question of
law and fact. Edens v. Hannigan, 87 F.3d 1109, 1113 (10th Cir. 1996) (citing
Strickland v. Washington, 466 U.S. 668, 698 (1984)). We review de novo the
district court’s determination of whether an actual conflict existed, and review for
clear error the district court’s resolution of the underlying facts, id., mindful of
our obligation to give due regard to the district judge’s determination of the
credibility of witnesses, weight afforded their testimony, and reasonable
inferences and conclusions drawn therefrom. United States v. Gama-Bastidas,
-4- 142 F.3d 1233, 1239-40 (10th Cir. 1998). In order to establish ineffective
assistance of counsel, Mr. Grist must show his counsel’s performance was
deficient and the deficiency prejudiced his defense. United States v. Martin, 965
F.2d 839, 842 (10th Cir. 1992).
However, special considerations apply in conflict of interest cases. 965
F.2d at 842. If Mr. Grist can show a conflict of interest actually affected the
adequacy of his representation, he will not need to demonstrate prejudice in order
to obtain relief. Id. In order to establish an actual conflict, the burden is on Mr.
Grist to show specific instances to support his contention of an actual conflict
adverse to his interest. Id. Generally, an attorney’s decision on whether to call a
particular witness is a tactical decision, and thus, a matter of discretion for trial
counsel. United States v. Snyder, 787 F.2d 1429, 1432 (10th Cir.) (quotation
marks and citation omitted), cert. denied, 479 U.S. 836 (1986). Mr. Grist must
overcome the strong presumption that his attorney’s decision not to call Mr.
Callicoat “might be considered sound trial strategy.” Strickland, 466 U.S. at 689
(quotation marks and citation omitted).
Keeping these legal standards in mind, we have reviewed the record in its
entirety and conclude Mr. Miller’s reasons for not calling Mr. Callicoat as a
-5- witness involved a reasonable, deliberate and tactical decision. Most notably, we
find it reasonable for Mr. Miller to assume Mr. Callicoat’s testimony would not
assist Mr. Grist, and more likely, would harm him, given: (1) the possibility of
Mr. Callicoat making a detrimental statement against Mr. Grist, as supported by
his inculpatory statements in the 302 investigative report; (2) Mr. Callicoat’s
conflicting statements on Mr. Grist’s culpability, when comparing his grand jury
testimony with the 302 investigative report; (3) his obvious lack of credibility
because of his conflicting statements; and (4) his vulnerability to impeachment on
cross-examination. 3 It appears Mr. Miller’s reasons for omitting Mr. Callicoat’s
testimony centered on these factors and not on protecting Mr. Callicoat, against
whom the charges had already been dropped and who consistently asserted his
own innocence, even though he initially provided information implicating only
Mr. Grist.
In support of Mr. Miller’s statement that Mr. Grist agreed not to call Mr.
3 The § 2255 hearing occurred thirteen years after completion of the initial 302 investigative report and grand jury hearing in 1986. Consequently, none of the witnesses retained full recall of the events at issue. We note, however, Mr. Callicoat’s inculpatory remarks in the 302 investigative report and conflicting statements to the grand jury support Mr. Miller’s statements as to Mr. Callicoat’s reluctance at that time to testify, his potential to implicate Mr. Grist, and his impeachability and lack of credibility as a witness. In addition, both Mr. Grist and Mr. Callicoat testified that Mr. Callicoat did not want to testify at trial, similarly supporting Mr. Miller’s testimony to that effect.
-6- Callicoat as a witness, Mr. Miller testified as to his usual practice of advising the
court for the record of his objections to unfavorable witnesses his clients insist on
calling to testify, and stated he would have done the same if Mr. Grist insisted on
calling Mr. Callicoat to testify. The record also discloses that at trial, Mr. Miller
called at least thirteen witnesses to testify, as suggested by Mr. Grist, to aid in his
defense, thereby lending support to Mr. Miller’s contention he similarly contacted
Mr. Callicoat at Mr. Grist’s direction. In fact, Mr. Miller called two of those
witnesses for the purpose of discrediting Ralph Crow, a key witness whom Mr.
Grist wished to discredit with the testimony of Mr. Callicoat. Finally, a review of
Mr. Callicoat’s initial statement to federal authorities and his testimony before
both the grand jury and district court at the § 2255 hearing shows it is unlikely his
conflicting and highly impeachable testimony would have exonerated Mr. Grist on
the count at issue, given the inculpatory testimony of Mr. Crow, whom the jury
apparently found credible, despite witness testimony to the contrary.
For these reasons, we grant a certificate of appealability and AFFIRM the
district court’s decision.
Entered by the Court:
WADE BRORBY United States Circuit Judge
-7-