McClure v. USA-2255

Filing 4

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/9/2011. (kns, Deputy Clerk)(c/m Petitioner McClure 8/10/11)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
CORNELL WINFREI MCCLURE
:
v.

:

Civil Action No. DKC 08-1830
Criminal Case No. DKC 01-0367

:
UNITED STATES OF AMERICA
:

MEMORANDUM OPINION
Presently pending and ready for resolution is the motion of
Petitioner Cornell McClure to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255.

(ECF Nos. 248, 249).

The issues are fully briefed and the court now rules pursuant to
Local Rule 105.6, no hearing being deemed necessary.

For the

reasons that follow, the court will deny Petitioner’s motion.
I.

Background
On October 16, 2002, Petitioner Cornell McClure and co-

defendant Rufus Millegan were charged via a second superseding
indictment for the kidnapping and murder of Tessa Mae Osborne.
The

indictment

included

three

counts

against

McClure:

(1)

murder, (2) kidnapping, and (3) use of a handgun during a crime
of violence.

McClure waived his right to a jury trial.

The

case was tried before the court.
During his trial, the Government presented evidence that
included

fibers

from

the

victim

found

in

the

front

seat

of

McClure’s Ford Bronco, testimony regarding a gun linked to the
murder, and a witness who last saw the victim near McClure’s
vehicle.

The Government also introduced evidence that McClure

confessed to the crimes, but later recanted.
McClure was found guilty on all counts.
2005,

this

court

sentenced

him

to

Then, on May 17,

concurrent

terms

of

life

imprisonment without the possibility of release for counts one
and two and a consecutive term of ten years for count three.
McClure appealed to the United States Court of Appeals for the
Fourth

Circuit,

arguing

that

the

death

penalty

violated

the

Eighth Amendment, and (2) that the Federal Death Penalty Act
(“FDPA”)

constituted

an

unconstitutional

Indictment Clause of the Fifth Amendment.

abridgement

of

the

Because McClure did

not receive a death sentence, the court did not reach the merits
of those arguments and affirmed his conviction and sentence on
July 10, 2007.
Cir. 2007).

United States v. McClure, 241 F.App’x 105 (4th

McClure did not petition for a writ of certiorari.

McClure timely filed this motion on July 14, 2008.
No. 248).

(ECF

He seeks relief on three bases: (1) he received

ineffective assistance of counsel, (2) the Government improperly
failed to turn over a witness’ “statement,” and (3) there was
insufficient evidence to support his conviction for kidnapping.
The Government opposed the motion on September 12, 2008 (ECF No.
251), and McClure replied on October 14, 2008 (ECF No. 254).
2

II.

Standard of Review
Title 28 U.S.C. § 2255 requires a petitioner to prove by a

preponderance of the evidence that “the sentence was imposed in
violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by
law.”

A

pro

se

movant

is

of

course

entitled

to

have

his

arguments reviewed with appropriate consideration.

See Gordon

v. Leeke, 574 F.2d 1147, 1151-53 (4th Cir. 1978).

But if the

Section 2255 motion, along with the files and records of the
case, conclusively shows that he is not entitled to relief, a
hearing on the motion is unnecessary and the claims raised in
the motion may be dismissed summarily.

28 U.S.C. § 2255(b).

III. Analysis
A.

Ineffective Assistance of Counsel

Petitioner contends that the combined actions and failures
of

his

counsel.

trial

attorney

amounted

to

ineffective

assistance

of

Such claims are governed by the well-settled standard

adopted by the Supreme Court in Strickland v. Washington, 466
U.S. 668 (1984).

Under the Strickland standard, the petitioner

must first show that counsel’s performance was deficient when
measured against an objective standard of reasonableness.
at 687-88.

Id.

Second, the petitioner must show that counsel’s

3

deficient performance prejudiced the defense, by depriving the
petitioner of “a trial whose result is reliable.”
To

establish

the

first

prong,

Id. at 687.

Petitioner

must

produce

evidence that counsel’s performance was not “within the range of
competence demanded of attorneys in criminal cases.”
687.

Id. at

There exists a strong presumption that counsel’s conduct

falls within a wide range of reasonably professional conduct,
and courts must be highly deferential in scrutinizing counsel’s
performance.

See id. at 688-89; Bunch v. Thompson, 949 F.2d

1354, 1363 (4th Cir. 1991).

Courts must judge the reasonableness

of attorney conduct “as of the time their actions occurred, not
the conduct’s consequences after the fact.”

Frye v. Lee, 235

F.3d 897, 906 (4th Cir. 2000).
As for the second prong, Petitioner must show that but for
his

counsel’s

deficient

performance,

proceedings would have been different.
694.

the

result

of

the

Strickland, 466 U.S. at

“It is not enough for the [petitioner] to show that the

[deficient

performance]

had

some

conceivable

effect

on

the

outcome of the proceeding”; instead, he “must show that there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result would have been different.”

Id. at 693.

“A

reasonable probability is a probability sufficient to undermine
confidence in the outcome” of the proceeding.

Id. at 694.

no

not

prejudice

is

established,

a
4

court

need

review

If
the

reasonableness of counsel’s performance in order to determine
whether counsel provided ineffective assistance.

Quesinberry v.

Taylor, 162 F.3d 273, 278 (4th Cir. 1998).
Although McClure characterizes his ineffective assistance
claim as “straight forward” (ECF No. 249, at 3), it is anything
but.

McClure vaguely alleges that his attorney should have

presented “the defense that was available,” rather than focusing
his efforts on the penalty phase.

(Id. at 5).

He then contends

that he had available certain unidentified witnesses who would
have testified about (or allowed him to testify about):
•

How McClure “knew so much about the victim’s death”;

•

How McClure
victim”;

•

“What happened to the guns that he and his codefendant were
accused of using to kill [the] victim”;

•

“His whereabouts
missing”;

•

The fact that “his statement [was] the product of abuse,
coercion, overborne tactics, rumors, and contained verbatim
[material] that was not authorized by Mr. McClure”;

•

The fact that “the FBI and U.S. Park Police reports are
lies and not creditable”;

•

“Where and who the ten fibers came from and how they got on
the front passenger seat of Mr. McClure’s vehicle”; and

•

“That due to the robbery that occurred at Mr. McClure’s
apartment, he did not have the firearms that [were] linked
to murdering the victim.”

“knew

which

during

guns

the

5

were

time

used

frame

to

the

murder

victim

the

went

(Id. at 6-7).

In addition, McClure states that his counsel’s

failure to call these witnesses “caused [him] to waive his right
to testify in his own defense” (id. at 3), evidently because “he
could only testify to what the witnesses told him, anything more
would have been limited by the hearsay rule” (id. at 6).
As a general matter, McClure is incorrect in suggesting
that his counsel overlooked the guilty stage of his trial.

The

record shows that counsel’s defense strategy rested on an effort
to

discredit

forensic

unfavorable

evidence

testimony

presented

by

and

the

cast

doubt

Government.

on

(See,

the
e.g.,

2/2/2005 Tr., at 55-60 (defense counsel’s closing argument)).
Counsel
each

advanced

that

Government

weaknesses

in

strategy

witness

the

to

evidence

by

thoroughly

highlight
against

cross-examining

inconsistencies

McClure.1

Pursuing

or
an

approach like the one pursued by McClure’s trial counsel is a
common

and

reasonable

approach

that

does

not

amount

to

ineffective assistance.
Moreover, counsel did not provide ineffective assistance in
failing

to

present

the

witnesses

to

which

McClure

alludes.

“[T]he decision whether to call a defense witness is a strategic
decision

demanding

the

assessment

1

and

balancing

of

perceived

Indeed, McClure admits that “counsel was successful in
weakening the Government’s case through cross-examination.”
(ECF No. 254, at 6).
6

benefits

against

perceived

risks,

afford enormous deference.”

and

one

to

which

we

must

United States v. Terry, 366 F.3d

312, 317 (4th Cir. 2004) (quotation marks, brackets, and ellipses
omitted).

Indeed, the Fourth Circuit – along with other courts

– has recognized that tactical decisions such as which witnesses
to call are “virtually unchallengeable.”

Powell v. Kelly, 562

F.3d 656, 670 (4th Cir. 2009) (quotation marks omitted); see also
United States v. Orr, 636 F.3d 944, 955 (8th Cir. 2011) (“[W]e
consistently have affirmed that a defense counsel’s decision not
to call a witness is a virtually unchallengeable decision of
trial strategy.” (quotation marks omitted)); Hall v. Thomas, 611
F.3d

1259,

(11th

1293

Cir.

2010)

(“[T]he

decision

concerning

which witnesses, if any, to call, and when to call them, is the
epitome of a strategic decision, and it is one that we will
seldom,

if

ever,

second

guess.”

(quotation

marks

omitted));

Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008) (“[T]he
decision of which witnesses to call is quintessentially a matter
of strategy for the trial attorney.”).
not

to

call

McClure’s

proposed

Thus, counsel’s decision

“witnesses”

to

testify

is

afforded extraordinary deference.
McClure has not overcome that deference here, as he has not
identified

any

called

trial.

at

generalities,

particular

witness

Instead,

asserting

that

McClure

without
7

any

counsel

simply
basis

should

speaks

what

in

these

have
broad

unnamed

persons would have said.

McClure has neither “identified the

witnesses, nor alleged that they would have been available at
his trial had counsel attempted to locate them.”
v. Green, 21 F.Supp.2d 521, 525 (D.Md. 1998).2
has

not

even

established

their

United States

In fact, McClure

existence.

Lacking

any

particular indication of what specific witness should have been
called,

McClure

cannot

establish

that

unreasonably in failing to call them.

his

counsel

acted

See, e.g., Campbell v.

United States, 364 F.3d 727, 734 (6th Cir. 2004).

And, in any

event, McClure has not presented any evidence of prejudice, as
“[t]his sort of speculation is simply inadequate to undermine
confidence in the outcome.”
240

(8th

Cir.

1991)

Goode v. Armontrout, 925 F.2d 239,

(internal

marks

omitted).3

This

is

2

Although McClure suggests an evidentiary hearing would
be appropriate, conclusory allegations are not enough to warrant
such a hearing.
See United States v. Roane, 378 F.3d 382, 401
(4th Cir. 2004); Raines v. United States, 423 F.2d 526, 531 (4th
Cir. 1970); cf. Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir.
1992) (“Unsupported, conclusory allegations do not entitle a
habeas petitioner to an evidentiary hearing.”), abrogated on
other grounds by Gray v. Netherland, 518 U.S. 152 (1996).
3

It is also worth noting that much of the information
that purportedly would have been proffered by these anonymous
witnesses was presented via other means at trial. For instance,
counsel was able to argue against the validity of McClure’s
recanted statement by attacking the manner in which it was taken
by Agent Braga and the credibility of his testimony. Likewise,
a Government witness conceded that fibers could be transferred
through both direct contact or secondary transfer, and McClure’s
counsel pointed out witness testimony in his closing statement
8

especially so given that most of the unidentified witnesses seem
directed toward mitigating McClure’s recanted statements.

As

the court concluded at trial, any attempt to attack his own
statements

would

have

been

decidedly

difficult,

given

that

additional letters written by McClure provided corroboration of
the content of the earlier statements.
McClure’s related claim that he was denied the right to
testify fares no better.

McClure does not argue that he was

denied an opportunity to testify or even that he was advised not
to.4

Instead, he only indicates that his counsel’s presentation

of the case prevented him from testifying because “he would have
been limited [in his ability] to testify about certain events
that had occurred.”

(ECF No. 254, at 13).

It is not at all

clear what McClure means here, but it is difficult to imagine
how the introduction of these other anonymous witnesses would

that the victim and friends of the victim had been in the car
prior to the crime.
4

Had he argued that his attorney was ineffective in
advising him against testifying, McClure would have again needed
to overcome the great deference given to an attorney’s advice to
a client regarding whether to testify.
See Carter v. Lee, 283
F.3d 240, 249 (4th Cir. 2002) (“[T]he advice provided by a
criminal defense lawyer on whether his client should testify is
a paradigm of the type of tactical decision that cannot be
challenged as evidence of ineffective assistance.” (quotation
marks omitted)).
9

have changed the contents of his own testimony.5

Furthermore,

the argument is premised on the idea that there actually are
particular, useful witnesses that counsel should have called –
an

idea

the

importantly,
ultimate

court

has
“it

however,

authority

already
is

to

decide

the

rejected.
defendant

whether

or

Perhaps
who

not

retains
to

Daniels v. Lee, 316 F.3d 477, 490 (4th Cir. 2003).

most
the

testify.”
Because it

was his choice to make, McClure must bear the consequences of
his own decision.

See also Taylor v. United States, 287 F.3d

658, 660 (7th Cir. 2002) (“Lawyers make many of the strategic and
tactical decisions at trial, but this decision lies in the hands
of the defendant personally.”).
There was no ineffective assistance of counsel here.
B.

Procedurally Barred Claims

McClure
presented

raises

in

his

two

additional

direct

appeal:

claims

(1)

that

that

the

were

not

Government

improperly failed to turn over a witness statement, and (2) that
there

was

conviction

insufficient
for

evidence

kidnapping.

These

at

trial

claims

to
are

support
not

his

properly

considered, as they have been procedurally defaulted.

5

In fact, when there is little other evidence to
support a defendant’s theory of the case, it might make even
more sense for the defendant to testify. See, e.g., Gardner v.
Galetka, 568 F.3d 862, 876-77 (10th Cir. 2009).
10

To attack a conviction collaterally based on errors that
could have been raised on appeal but were not, a petitioner must
demonstrate

“cause

and

actual

prejudice

resulting

from

the

errors” or that “a miscarriage of justice would result from the
refusal

of

the

court

to

entertain

the

collateral

attack.”

United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir.
1999), cert. denied, 529 U.S. 1010 (2000).

A finding of cause

for a procedural default “must turn on something external to the
defense,

such

as

the

novelty

of

effective assistance of counsel.”

the

claim

Id. at 493.

or

a

denial

of

This showing may

be excused if the movant can demonstrate that he is actually
innocent of the crime.

See United States v. Bowman, 267 F.App’x

296, 299 (4th Cir. 2008) (per curiam) (citing Sawyer v. Whitley,
505 U.S. 333, 339 (1992)).
McClure acknowledges that he did not bring these claims on
appeal.
of

He alleges no cause, no prejudice, and no miscarriage

justice.6

Despite

his

entreaties

6

to

review

these

claims

In his initial petition, McClure seemed to hint that
his appellate counsel was to blame for his failure to present
these issues on appeal, but McClure did not make a claim based
on ineffective assistance of counsel. Short of constitutionally
ineffective assistance, “attorney ignorance or inadvertence is
not cause [to excuse procedural default] because the attorney is
the petitioner’s agent when acting, or failing to act, in
furtherance of the litigation, and the petitioner must bear the
risk of attorney error.”
Rouse v. Lee, 339 F.3d 238, 249 (4th
Cir. 2003) (internal marks omitted).
On reply, McClure
acknowledges that he did not bring a claim of ineffective
11

“whether they are procedurally barred or not” (ECF Nos. 254, at
15), the court cannot.
It

is

worth

noting

briefly,

however,

that

these

claims

would fail on their merits, even had McClure properly preserved
them.
First,

McClure

contends

that

the

Government

improperly

refused to provide him with an FBI report created after an agent
interviewed Raymond Bailey, a witness for the prosecution.

When

counsel requested a copy of the report after Bailey’s direct
testimony at trial, the Government argued – convincingly - that
the report was not discoverable, as it was only a summary of an
interview with a witness (not a statement).

McClure now seems

to suggest that (a) the Government was required to disclose the
material under the Jencks Act and (b) the prosecution improperly
withheld this evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963).

Both arguments fail.

Normally, for a document to qualify as Jencks material, it
must

consist

of

the

witness’s

own

words

and

be

signed

or

assistance, but again argues that his claims should be
considered on their merits because he was “miseducated” on the
law. (ECF No. 254, at 15). “[A] petitioner’s ignorance of the
relevant laws and procedures do not amount to cause sufficient
to excuse procedural default.”
See, e.g., Bonilla v. Hurley,
370 F.3d 494, 498 (6th Cir. 2004). In any event, this argument
would have failed even if it had been centered around
ineffective assistance, as McClure was not prejudiced by his
counsel’s failure to raise these non-meritorious claims.
12

otherwise approved by the witness.

United States v. Roseboro,

87 F.3d 642, 645 (4th Cir. 1996); 18 U.S.C. § 3500(e).

Notes

taken during the course of an interview are typically not Jencks
statements,

as

they

do

not

reflect

transcription of the interview.
126,

(4th

131

Cir.

1996),

an

essentially

verbatim

United States v. Hall, 93 F.3d

abrogated

on

other

grounds

Richardson v. United States, 526 U.S. 813 (1999).

by

The record

does not indicate that such a statement was ever taken beyond
Bailey’s assertion that he signed “a couple of pieces of paper”
on the day of the interview and that he was “pretty sure” one of
the

papers

was

a

statement.

conjecture is not enough.

(ECF

No.

249

¶

13).

Such

a

As the court explained before, the

report was “somebody else’s recollection of what the interview
was” and was consequently not Jencks material.
This
claim.

claim

also

fails

when

(Id. ¶ 7).

recharacterized

as

a

Brady

Under Brady, the prosecution may not withhold evidence

that is “material either to guilt or to punishment.”

373 U.S.

at 87.

To constitute a Brady violation, the withholding of

evidence

must

be

“so

serious

that

there

is

a

reasonable

probability that the suppressed evidence would have produced a
different verdict.”

Strickler v. Greene, 527 U.S. 263, 281.

Put differently, the suppression of exculpatory and impeachment
evidence can constitute a Brady violation if the suppression
denies a fair trial to the defendant.
13

United States v. Bagley,

473 U.S. 667, 676 (1985).
clearly immaterial.

Here, Bailey’s statement is quite

McClure argues Bailey’s “prior statement”

could have been used to impeach Bailey’s testimony.
Bailey
McClure

testified
notes

that

that

the

this

victim

entered

testimony

a

conflicts

At trial,

“white”
with

Bronco.

the

search

warrant, which indicates that the witness saw a “light tan or
beige” Bronco.

(ECF No. 249 ¶ 19).

And according to McClure,

the FBI report contains the same reference to a “tan or beige”
Bronco.

(Id.).

Even

if

that

were

true,

this

minor

inconsistency does not rise to the level of a Brady violation,
particularly

in

view

of

a

Government

case

Circuit characterized as “unassailable.”
at 109.

that

the

Fourth

McClure, 241 F.App’x

And given that these sorts of witness summaries are not

admissible evidence at all (unless the witness has adopted the
summary as his own), see, e.g., United States v. De La Cruz
Suarez, 601 F.3d 1202, 1216 (11th Cir. 2010), the suppression of
the Bailey report could hardly be deemed material.
Second,

McClure

incorrectly

asserts

that

the

evidence

produced at trial was insufficient to sustain his conviction for
kidnapping.

“In

reviewing

the

sufficiency

of

the

evidence

following a conviction, the court is to construe the evidence in
the

light

most

favorable

to

the

government,

assuming

its

credibility, and drawing all favorable inferences from it, and
will sustain the jury’s verdict if any rational trier of fact
14

could have found the essential elements of the crime charged
beyond a reasonable doubt.”
F.3d 566, 571 (4th Cir. 2011).

United States v. Penniegraft, 641
In light of that standard, it is

obvious that the record was more than sufficient to convict
McClure on all counts.

Even putting the standard aside, the

court firmly believed that the evidence was sufficient when it
found him guilty at trial, and McClure has offered nothing to
sway that conviction.

Indeed, the Court of Appeals specifically

noted that the evidence was both “unassailed and unassailable.”
McClure, 241 F.App’x at 109; cf. Romines v. United States, 177
F.Supp.2d

529,

533

(W.D.Va.

2001)

(holding

that

a

Court

of

Appeals determination that the evidence was sufficient barred
raising the issue in a Section 2255 motion).

He is not entitled

to relief on this ground or any other.
IV.

Conclusion
For the foregoing reasons, McClure’s motion to vacate, set

aside, or correct his sentence pursuant to 28 U.S.C. § 2255 will
be denied.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. §§ 2254 or 2255, the court is also required to
issue or deny a certificate of appealability when it enters a
final

order

adverse

to

the

applicant.

A

certificate

of

appealability is a “jurisdictional prerequisite” to an appeal
from the court’s earlier order.
15

United States v. Hadden, 475

F.3d 652, 659 (4th Cir. 2007).

A certificate of appealability

may issue “only if the applicant has made a substantial showing
of

the

denial

2253(c)(2).

of

a

constitutional

right.”

28

U.S.C.

§

Where the court denies petitioner’s motion on its

merits, a petitioner satisfies this standard by demonstrating
that reasonable jurists would find the court’s assessment of the
constitutional claims debatable or wrong.

Slack v. McDaniel,

529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell, 537
U.S.

322,

336-38

(2003).

Where

a

motion

is

denied

on

a

procedural ground, a certificate of appealability will not issue
unless the petitioner can demonstrate both “(1) that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and (2) that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.”

Rose v. Lee, 252

F.3d 676, 684 (4th Cir. 2001) (quotation marks omitted).

McClure

does not satisfy the above standard.
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

16