United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2012 Decided November 9, 2012

No. 09-3094

UNITED STATES OF AMERICA,

APPELLEE

v.

BYRON LAMONT MCDADE, ALSO KNOWN AS BARRY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:00-cr-00105-4)

Robert S. Becker, appointed by the court, argued the cause

and filed the briefs for appellant.

James A. Petkun, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Ronald C. Machen, Jr.,

U.S. Attorney, and Roy W. McLeese III, John P. Mannarino, and

John P. Dominguez, Assistant U.S. Attorneys. Elizabeth

Trosman, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS, BROWN and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.
2

ROGERS, Circuit Judge: Upon failing on direct appeal to

obtain reversal of his conviction by a jury of one count of

conspiracy to distribute five kilograms or more of cocaine and

aiding and abetting, Byron L. McDade filed a motion

challenging his sentence pursuant to 28 U.S.C. § 2255. The

motion was filed within the one-year limitation of § 2255(f), but

did not include his claim of ineffective assistance of trial

counsel. The government therefore maintains this later-filed

claim is not properly before the court. Guided by Holland v.

Florida, – U.S. –, 130 S. Ct. 2549 (2010), interpreting 28 U.S.C.

§ 2244, we join our sister circuits in holding that equitable

tolling applies to § 2255 motions. Here, the later-filed claim is

properly before the court because McDade was diligent in

researching his claim and post-conviction counsel1

acknowledged that the failure to include the ineffective

assistance claim in the timely § 2255 motion was due solely to

his own error. On the merits, however, we conclude that

McDade has failed to meet his burden under Strickland v.

Washington, 466 U.S. 668 (1984), to show that he was denied

his Sixth Amendment right to the effective assistance of trial

counsel. Whether or not trial counsel’s decision not to interview

potential impeachment witnesses was objectively reasonable,

any failures were not prejudicial because there is no reasonable

probability that the outcome of the trial would have been

different absent the errors. Accordingly, we affirm.

I.

A grand jury issued a superceding indictment on August 9,

2001, charging McDade with one count of conspiracy to

distribute five kilograms or more of cocaine in violation of 21

U.S.C. § 846. A jury found him guilty after a 10-day trial. The

1

 McDade is represented by new counsel on appeal.
3

district court sentenced him, in accord with the then mandatory

Sentencing Guidelines, to 324 months’ imprisonment.2 

The government’s evidence at trial consisted primarily of

testimony from McDade’s cocaine supplier, individuals who

purchased cocaine from McDade, and minimal wire tap

evidence of conversations between McDade and his alleged

cocaine supplier, Phyllis Webster. The evidence included

testimony that Webster received cocaine from Cornelius

Singleton and that McDade in turn sold this cocaine for Webster

beginning in 1998. Webster testified that in 1998 she chose

McDade to take over her cocaine distribution and that she also

provided him with cocaine at a discounted rate to distribute to

his own customers. Ernest Minder testified that McDade

received his cocaine from Webster and sold cocaine to Minder

and others. The taped telephone conversations between Webster

and McDade tended to corroborate Webster’s testimony, for

example that McDade kept the records of his drug sales on the

backs of lottery tickets. Because Webster and McDade spoke in

code, however, the tapes did not identify the kind of cooperative

endeavor in which they were engaged. The government also

presented evidence that McDade had fled when his employer

told him that an FBI agent wanted to speak with him, and later

hung up when the FBI contacted him by phone; McDade turned

himself in seven months later. 

McDade presented no witnesses and did not testify himself. 

Instead, he relied on cross-examination of the government’s

witnesses, which elicited incriminating statements, including

admissions that they had violated the conditions of their

2

 At sentencing the district court observed that McDade’s

sentence under the mandatory Sentencing Guidelines was “much more

than sufficiently punitive.” Judgment June 3, 2002 at 6. 
4

probation or their cooperation agreements with law enforcement

and were testifying with the expectation of receiving reduced

sentences. 

This court affirmed McDade’s direct appeal of his

conviction, see United States v. McDade, No. 02-3054, 2003

WL 22204126 (D.C. Cir. Sept. 16, 2003), rejecting his

contentions that there was insufficient evidence to show a single

conspiracy, that there was reversible error as a result of the

prosecutor’s rebuttal closing argument, and that in sentencing

the district court erred in finding that he was a manager or

supervisor pursuant to § 3B1.1 of the Sentencing Guidelines. 

The Supreme Court denied his petition for a writ of certiorari on

March 8, 2004. See McDade v. United States, 541 U.S. 911.

On March 7, 2005, McDade, through new counsel, filed a

“motion to vacate, set aside, or correct the sentence” pursuant to

28 U.S.C. § 2255. Despite McDade’s requests to counsel that

the motion include a claim of ineffective assistance of trial

counsel for failure to interview potential impeachment

witnesses, counsel inadvertently omitted this claim. On April 8,

2005, after the § 2255 limitation period had run, counsel filed an

amended motion along with a supporting memorandum and

affidavits. The district court denied McDade’s § 2255 motion

with regard to two claims not relevant to this appeal, and

ordered supplemental briefing with regard to the timeliness of

his ineffective assistance of trial counsel claim. Despite the

government’s objection that this claim was time-barred, the

district court stated that it was “loathe to dispose of [McDade’s]

claim of ineffective assistance of trial counsel on [the

timeliness] basis alone when [McDade] is serving a very lengthy

sentence (324 months) and when his amended motion, if indeed

it was untimely, was no more than a month late.” United States

v. McDade, No. cr-00-0105, No. cv-05-0555, at *8 (D.D.C. Jan.

5, 2006). 
5

At an evidentiary hearing on January 15, 2008, the district

court heard from McDade, his trial counsel, and one of the

potential impeachment witnesses, Kent Sebastian Robinson,

who McDade argued his trial counsel had unreasonably failed to

interview in preparing for trial. McDade testified about the

information he had given to trial counsel regarding three

impeachment witnesses, and trial counsel testified as to his

theory of the case, his trial strategy, and his reasons for not

calling or interviewing Rodney Douglas, David Flowers, and

Robinson as potential impeachment witnesses. In a February

28, 2005 affidavit accompanying McDade’s amended § 2255

motion, Flowers stated that he encountered Ernest Minder while

Minder was in protective custody, and that Minder had told him

that the government wanted Minder to testify against McDade,

but that Minder did not know McDade. Douglas, in his affidavit

of November 2, 2004, stated that Minder had also told Douglas

that he “did not know [McDade] like that.” Because McDade

knew Minder and it would be easy to “explain away” Minder’s

statement denying in essence that he was cooperating with the

government, trial counsel explained that he had determined that

the testimony of Douglas would not be helpful. See United

States v. McDade, 639 F. Supp. 2d 77, 83 (D.D.C. 2009). He

had no recollection or notation of any conversations about

Flowers. 

Robinson testified that although he could have offered

testimony during McDade’s trial that contradicted the testimony

of Phyllis Webster that Robinson had introduced her to McDade,

he probably would have invoked his Fifth Amendment privilege

against self-incrimination with regard to all other questions. 

McDade testified that Robinson would have refuted Webster’s

testimony that she had sold drugs to McDade by way of

Robinson. Trial counsel testified that he had no recollection

McDade had told him this, and that he would have remembered

this if he had; trial counsel’s pre-trial notes indicated that
6

McDade did not want to call Robinson as a witness, and he had

no recollection McDade had changed his mind during trial. 

Trial counsel proceeded to explain that, based on his

conversations with McDade and the prosecutor, who wanted

McDade to testify against Robinson, he had concluded that

calling Robinson as a defense witness, whom counsel suspected

the government could prove was a drug dealer and had evidence

to impeach any testimony he might offer, would involve risks to

McDade that outweighed the potential impeachment value of his

testimony. See id. at 84. As the district court recounted, his trial

strategy was to “show at trial that all of the government’s

witnesses were ‘criminals’ and ‘scoundrels’ who have had a

history of ‘possessing weapons’ and dealing drugs and were

testifying against the defendant only because they had ‘cut deals

seeking reduced sentences,’” Id. at 82, whereas McDade was “a

hard working man” with a “wife” and “three children” who had

a “contract with Medicaid . . . transport[ing] elderly, sick and

mentally handicapped people to hospitals” and worked as a trash

collector for “Waste Management,” Tr. Feb. 4, 2002 at 597. 

Calling Robinson might open up “a whole new dimension,” Tr.

Jan. 15, 2008 at 62, emphasizing McDade’s relationship with

Robinson, and so undermine the theory of the case he was

presenting to the jury while not providing “anything that would

have been particularly substantial.” Id. at 63.

The district court denied McDade’s § 2255 motion, finding

that trial counsel’s decision not to call Douglas, Flowers, and

Robinson as impeachment witnesses was “not objectively

unreasonable, nor was the decision not to interview Douglas and

Flowers.” McDade, 639 F. Supp. at 82. In view of McDade’s

assertions as to Robinson’s potential testimony, however, the

district court concluded it was “objectively unreasonable” for

trial counsel “not to interview Robinson,” id. at 82 (emphasis in

original), before deciding whether to call him as a witness. 

Nevertheless, the district court found that McDade had failed to
7

show prejudice under the second prong of Strickland’s

ineffective assistance of counsel test because trial counsel’s

failure to interview Robinson “did not prejudice the outcome of

the trial,” id. at 85, and therefore McDade’s ineffective

assistance of counsel claim was without merit. The district court

considered Robinson’s criminal record, the minimal effect his

testimony could have had on Webster’s credibility, and the

“dubious proposition” that it would even have permitted

Robinson to testify given his statements that he would have

asserted his Fifth Amendment privilege with regard to all but

one question. Id. at 84–85. Because the district court resolved

the motion on the question of prejudice, it declined to analyze

whether the ineffective assistance of trial counsel claim was

time-barred.3 

II.

On appeal, McDade contends that the district court’s

conclusion that trial counsel made an objectively reasonable

decision not to interview Douglas and Flowers was based on

assumptions about the value of their testimony that are

unsupported in the record. Trial counsel’s failure to interview

Douglas and Flowers, he maintains, was as objectively

unreasonable as counsel’s decision not to interview Robinson. 

In McDade’s view, a proper evaluation of the potential

testimony of these witnesses makes evident that but for

counsel’s error there is a reasonable probability of a different

result at trial. The government disagrees, maintaining McDade

3

 Additionally, in denying the § 2255 motion the district court

stated that McDade’s sentence was “disproportionate,” recommended

that the Director of the Federal Bureau of Prisons reduce his sentence,

and urged the President to “consider executive clemency for Mr.

McDade” and “reduce [his] sentence to fifteen years in prison

followed by a substituted term of supervised release.” Id. at 86.
8

fails to meet his burden at each prong of the Strickland test 

because trial counsel made a reasonable tactical decision after

considering the information provided by McDade and by the

government not to investigate or call the potential impeachment

witnesses, and, in any event, McDade has failed to show any

prejudice from trial counsel’s purported deficiency. As a

threshold matter, however, the government renewed its

objection that the § 2255 claim of ineffective assistance of

counsel was untimely filed and is thus not properly before the

court. We address that question first.

A.

28 U.S.C. § 2255(f) sets a one-year limitation for filing a

motion pursuant to this section and establishes that the limitation

will run from the latest of four enumerated circumstances. 

Unlike all of our sister circuits, this court has yet to decide

whether equitable tolling applies to a motion filed pursuant to

§ 2255.4

 In United States v. Cicero, 214 F.3d 199, 203 (D.C.

Cir. 2000), the court implied that equitable tolling under § 2255

would be available only in “extraordinary circumstance.” Since

then the Supreme Court has held that equitable tolling applies to

the time limitation in 28 U.S.C. § 2244, a nearly identical

4 See Ramos-Martinez v. United States, 638 F.3d 315, 318 (1st

Cir. 2011); Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001);

Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 619 n.1

(3d Cir. 1998); United States v. Prescott, 221 F.3d 686, 688 (4th Cir.

2000); United States v. Petty, 530 F.3d 361, 364 (5th Cir. 2008);

Solomon v. United States, 467 F.3d 928, 929 (6th Cir. 2006); United

States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000); Moore v.

United States, 173 F.3d 1131, 1134 (8th Cir. 1999); United States v.

Buckles, 647 F. 3d 883, 889 (9th Cir. 2011); United States v.

Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008); Sandvik v. United

States, 177 F.3d 1269, 1271–72 (11th Cir. 1999) (per curiam).
9

provision. See Holland, – U.S. –, 130 S. Ct. at 2560. Sections

2244 and 2255 were enacted as part of the Anti-terrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 

104-132, §§ 101, 105, 110 Stat. 1214, 1217, 1220 (1996), and

the text of both sections is similar. Compare 28 U.S.C.

§ 2244(d), with 28 U.S.C. § 2255(f).5

In Holland, the Court held that the limitations period in

§ 2244(d) was not jurisdictional and reaffirmed that a nonjurisdictional federal statute of limitations is “normally subject

to a rebuttable presumption in favor of equitable tolling.” 130

S. Ct. at 2560 (quoting Irwin v. Dep’t of Veterans Affairs, 498

U.S. 89, 95–96 (1990)) (emphasis in original) (internal

quotations omitted). The Court noted that equitable principles

have traditionally governed the substantive law of habeas

corpus. Id. (citing Munaf v. Geren, 553 U.S. 674, 693 (2008)). 

The Court also noted that “[t]he presumption’s strength is yet

further reinforced by the fact that Congress enacted AEDPA

after this Court decided Irwin and therefore was likely aware

that courts, when interpreting AEDPA’s timing provisions,

would apply the presumption.” Id. at 2561. Further, the Court

distinguished the text in AEDPA’s limitation provision from

other statutes in which the presumption had been overcome by

the use of more emphatic and highly detailed and technical

5

 Section 2244(d)(1) provides: “A 1-year period of limitation

shall apply to an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.” It proceeds to

define when the limitation period starts to run. 28 U.S.C. § 2244(d)(2)

provides: “The time during which a properly filed application for State

post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period

of limitation under this subsection.” Section 2255(f) provides: “A 1-

year period of limitation shall apply to a motion under this section.” 

It proceeds to define when the limitation period starts to run.
10

language or by a limitations period that was unusually generous. 

See id. (citing United States v. Brockamp, 519 U.S. 347 (1997),

and United States v. Beggerly, 524 U.S. 38 (1998)). The fact

that AEDPA was silent as to equitable tolling but contained a

provision expressly referring to tolling during state collateral

review proceedings was “easily explained,” without rebutting

the presumption in favor of equitable tolling, by the fact a

petitioner cannot bring a federal habeas corpus claim until after

exhausting state remedies, making it necessary for Congress to

explain how the limitations statute would account for the time

during which the state proceedings were pending. Id. at 2562. 

For these reasons the Court “conclud[ed] that neither AEDPA’s

textual characteristics nor the statute’s basic purposes ‘rebut’ the

basic presumption set forth in Irwin.” Id. The Court reaffirmed

that a petitioner is entitled to equitable tolling only if “he shows

(1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way and prevented

timely filing.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408,

418 (2005)) (internal quotations omitted).

We hold, in view of Holland, that equitable tolling applies

to motions filed pursuant to § 2255. The textual similarity of

§ 2244(d) and § 2255(f) and their concurrent enactment by

Congress as part of AEDPA indicate that the Court’s reasoning

is no less applicable to § 2255 than to § 2244. Further, because

§ 2255 motions are in the nature of a federal habeas petition, the

equitable principles discussed in Holland with regard to § 2244

apply with equal force to § 2255. Indeed, the government

appears to concede that equitable tolling applies to § 2255

motions, see Appellee’s Br. at 43–44, maintaining only that

McDade merely offered garden variety claims of excusable

neglect to justify the untimeliness of his effective assistance of

trial counsel claim. 
11

The facts regarding the filing of McDade's amended § 2255

motion are uncontested. A remand is therefore unnecessary and

we proceed to address whether equitable tolling applies to his

ineffective assistance of trial counsel claim. As the Supreme

Court has held, attorney error alone in calculating a filing

deadline generally does not amount to extraordinary

circumstances. See Lawrence v. Florida, 549 U.S. 327, 336

(2007). Moreover, the Court observed in Irwin that courts have

“typically extended equitable relief only sparingly.” 498 U.S.

at 96. Still, the Court observed approvingly, courts have

“allowed equitable tolling in situations where the claimant has

actively pursued his judicial remedies by filing a defective

pleading during the statutory period, or . . . been induced or

tricked by his adversary’s misconduct into allowing the filing

deadline to pass.” Id. It cautioned that it has generally “been

much less forgiving in receiving late filings where the claimant

failed to exercise due diligence in preserving his legal rights.” 

Id. 

The missed-deadline cases from this circuit are 

distinguishable from McDade’s case. In United States v.

Pollard, 416 F.3d 48, 54, 56 (D.C. Cir. 2005), a highly educated

defendant who had served as an Intelligence Research Specialist

in the U.S. Navy had done no legal research on his own into a

possible § 2255 motion, and filed his second § 2255 motion

approximately thirteen years after his sentencing. In Cicero,

214 F.3d at 204, the defendant waited until almost three years to

file, having had several years prior to his run of misfortune to do

so. By contrast, McDade’s unusual level of diligence and the

extraordinary nature of the situation is documented in letters

before the court that he wrote to post-conviction counsel well

before the § 2255 one-year deadline. McDade researched his

claim and timely advised post-conviction counsel by letters of

his wish to raise an ineffective assistance of trial counsel claim

in challenging his sentence. McDade also gathered evidence
12

in support of his claim, obtaining separate affidavits from three

potential impeachment witnesses regarding what they would

have testified at his trial had they been called in his defense and

forwarding them to counsel. In one of his letters he alerted

counsel almost four months in advance that the one-year

limitation would expire on March 8, 2005. Additionally, he

requested that counsel forward him a draft of his § 2255 motion,

which McDade claims counsel never did. Post-conviction

counsel, who has acknowledged the omission was due solely to

his own inadvertence, failed to heed McDade’s requests until

after the § 2255 deadline had passed. The amended motion

including the ineffective assistance of trial counsel claim was

filed only 30 days past the one-year limitations period. The

circumstances in McDade’s case are thus distinguishable from

“garden variety” error cases that involve the failure of counsel

and the defendant and counsel to properly calculate a deadline

and the defendant’s sitting on his hands. 

McDade’s diligence in pursuing his claim and his counsel’s

failure to abide by his requests demonstrate extraordinary

circumstances warranting application of equitable tolling to his

ineffective assistance of trial counsel claim in his amended

§ 2255 motion. That claim is, therefore, properly before the

court.6

B.

To prevail on an ineffective assistance of counsel claim,

McDade must show that counsel’s errors did not meet the

standard of “reasonableness under prevailing professional

6

 In view of our holding that equitable tolling applies to

McDade’s § 2255 motion, the court need not address the government’s

alternative argument that McDade’s later-filed ineffective assistance

of counsel claim would not be timely under the “relation back”

standard of Rule 15(c) of the Federal Rules of Civil Procedure. 
13

norms.” Strickland, 466 U.S. at 688. When courts evaluate

ineffectiveness claims, their “scrutiny of counsel’s performance

must be highly deferential.” Id. at 689. Where the case involves

a failure to investigate, the “particular decision not to investigate

must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to

counsel’s judgments.” Id. at 691; see id. at 689. Even if trial

counsel’s decisions were unreasonable, however, McDade still

must meet Strickland’s prejudice prong by showing that “the

decision reached would reasonably likely have been different

absent the errors.” Id. at 696.

This court has “declined to fix the appropriate standard” for

review of the mixed question of law and fact underlying denial

of a § 2255 motion alleging ineffective assistance of counsel,

not having encountered a case where reversal is merited even

under the more searching de novo standard. In re Sealed Case,

488 F.3d 1011, 1016 (D.C. Cir. 2007); see also United States v.

Gwyn, 481 F.3d 849, 853 (D.C. Cir. 2007); United States v.

Toms, 396 F.3d 427, 432–33 (D.C. Cir. 2005).7

 Even assuming

a standard that is favorable to McDade (i.e., de novo review with

regard to district court rulings against McDade and more

deferential review of determinations in his favor) does not

7

 Other circuits apply a de novo standard of review. See

Familia-Consoro v. United States, 160 F.3d 761, 765 (1st Cir. 1998);

Winkler v. Keane, 7 F.3d 304, 308 (2d Cir. 1993); United States v.

Kauffman, 109 F.3d 186, 187 (3d Cir. 1997); United States v.

Nicholson, 611 F.3d 191, 205 (4th Cir. 2010); United States v. RivasLopez, 678 F.3d 353, 356 (5th Cir. 2012); Campbell v. United States,

686 F.3d 353, 357 (6th Cir. 2012); Spreitzer v. Peters, 114 F.3d 1435,

1450 (7th Cir. 1997); Nupdal v. United States, 666 F.3d 1074, 1075

(8th Cir. 2012); United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir.

2012); United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011);

Gordon v. United States, 518 F.3d 1291, 1296 (11th Cir. 2008).
14

demonstrate reversal is merited, and we therefore remain

agnostic as to the appropriate standard. 

1. In Strickland, 466 U.S. at 691, the Court instructed that

“when a defendant has given counsel reason to believe that

pursuing certain investigations would be fruitless or even

harmful, counsel’s failure to pursue those investigations may not

later be challenged as unreasonable.” The district court appears

to agree this is just such a scenario as to Douglas and Flowers. 

As to Robinson, however, the district court appears to have

concluded that trial counsel should have recognized that

Robinson’s testimony was potentially substantial enough as to

merit further investigation, whereas the testimony of Douglas

and Flowers was at best insignificant and at worst damaging to

the theory of the case trial counsel intended to present to the

jury. In the district court’s words, “because [trial counsel] did

not conduct any investigation with respect to Robinson, [the

district court] cannot find that [trial counsel] possessed

sufficient information about Robinson’s likely testimony to

make a reasoned judgment that the risk of putting Robinson on

the [witness] stand outweighed the potential impeachment

value.” McDade, 639 F. Supp. 2d at 84. 

On appeal, McDade relies primarily on dictum in United

States v. Debango, 780 F.2d 81 (D.C. Cir. 1986). In that case,

the court stated that “the complete failure to investigate

potentially corroborating witnesses . . . can hardly be considered

a tactical decision.” Id. at 85. The court never decided whether

the defense attorney’s decision not to investigate was

unreasonable, however, because it opted to resolve the issue on

Strickland’s prejudice prong instead. Id. In any event, in

Debango the court referred to a “complete failure to

investigate,” whereas McDade’s trial counsel had information

about Douglas’s potential testimony and determined that such

testimony had only limited impeachment value and could be
15

easily attacked on cross-examination in a way to make it seem

that McDade had sent Douglas to intimidate a government

witness in protective custody. Although trial counsel had no

recollection of McDade mentioning Flowers, Flowers’ affidavit

indicates his testimony is essentially the same as Douglas’s,

making him vulnerable to impeachment on cross-examination

for similar reasons. And based on the information that trial

counsel received as a result of his conversations with the

prosecutor about Robinson, his filing of between 70 and 90

subpoenas for evidence, and his conversations with McDade,

trial counsel did not completely fail to investigate Robinson,

only declined to interview him. Other cases on which McDade

relies — Johnson v. Bagley, 544 F.3d 592, 600 (6th Cir. 2008),

and Anderson v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003) —

provide no support for his position because trial counsel decided

not to investigate for a combination of reasons, including the

minimal impact the substance of the testimony would have

regardless of the credibility of the witness. 

This appeal, however, does not turn on whether trial counsel

was objectively unreasonable in declining to interview Robinson

and the other two impeachment witnesses about their potential

testimony. As the district court found regarding Robinson, it is

unlikely, given trial counsel’s effective impeachment of the

government’s witnesses, and Robinson’s intention to assert his

Fifth Amendment privilege with regard to most questions, that

further impeachment testimony from him would have resulted

in a different outcome at trial.

2. Under Strickland’s prejudice prong, McDade must show

a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

United States v. Carter, 449 F.3d 1287, 1296 (D.C. Cir. 2006)

(quoting Strickland, 466 U.S. at 694) (internal quotations

omitted). Robinson testified at the § 2255 motion evidentiary
16

hearing that if he had been called as a witness at McDade’s trial,

he “would have invoked the Fifth Amendment” with regard to

anything beyond whether he had “introduc[ed] Mr. McDade to

Ms. Webster.” Tr. Jan. 15, 2008 at 103. Given that Robinson’s

testimony would have been so limited, the district court noted

that any proposition that he would have let Robinson testify was

“dubious . . . at best.” McDade, 637 F. Supp. 2d at 85. Because

it is unlikely that the district court would have permitted

Robinson to testify, there is no “reasonable probability” that

Robinson’s testimony would have affected the result of the

proceedings. 

It is McDade’s position that if the district court had allowed

Robinson to testify (or if the government had granted him

immunity), then Robinson’s testimony that he had not

introduced McDade to Phyllis Webster would have had a

sufficient impact on the outcome of the trial to merit a finding

of ineffective assistance under Strickland. McDade’s

arguments, however, focus on the fact that Robinson was

incarcerated during the period when Webster testified he had

introduced her to McDade. Whether or not he was incarcerated,

the issue of whether Robinson introduced Webster and McDade

is a relatively minor point; tape recordings established Webster

and McDade were working together in some capacity, and

Webster and Minder were not the only government witnesses to

testify that McDade was selling cocaine he received from

Webster. Additionally, through cross examination trial counsel

had undermined Webster’s testimony to the extent that

additional impeachment testimony to the effect that Robinson

had not introduced Webster to McDade “might,” as the district

court found, have only “tarnished Webster’s credibility

slightly.” McDade, 639 F. Supp. 2d at 85. Robinson’s

testimony, in sum, was unlikely to “undermine confidence in 

the outcome.” Strickland, 466 U.S. at 694. This is true even if

all three — Douglas, Flowers, and Robinson — had testified; the
17

minimal impact of their impeachment testimony over and above

the impeachment otherwise achieved by trial counsel through

cross examination of the government’s witnesses would have

been insufficient to show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id.

Accordingly, because McDade fails to meet his burden

under Strickland, we affirm.