UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-6710

LARRY V. FOX,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Robert J. Staker, Senior District Judge.

(CR-88-245-3)

Argued: January 31, 1996

Decided: June 28, 1996

Before HALL and MURNAGHAN, Circuit Judges, and STAMP,

Chief United States District Judge for the Northern District

of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion. Judge Murnaghan

wrote a dissenting opinion.

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COUNSEL

ARGUED: Michelle Jeanette Anderson, Appellate Litigation Clinical

Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Michael O. Callaghan, Assistant United

States Attorney, Charleston, West Virginia, for Appellee. ON

BRIEF: Steven H. Goldblatt, Director, Craig W. Canetti, Student
Counsel, Jeffrey J. Lopez, Student Counsel, Appellate Litigation Clinical Program, GEORGETOWN UNIVERSITY LAW CENTER,

Washington, D.C., for Appellant. Rebecca A. Betts, United States

Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Larry V. Fox ("Fox") appeals from the district court order denying

his 28 U.S.C. § 2255 motion. Fox sought relief from his sentence

based on an allegation of ineffective assistance of counsel. For the

reasons set forth below, we affirm.

On March 28, 1989, following a jury trial, Fox was found guilty

of four counts relating to the distribution of cocaine. Fox filed a

timely direct appeal. On February 15, 1990, this Court affirmed the

judgment of the district court. United States v. Fox, No. 89-5174 (4th

Cir. Feb. 13, 1990) (unpublished). On June 30, 1992, Fox filed a

motion under 28 U.S.C. § 2255 seeking to vacate his sentence. In his

§ 2255 motion, Fox contends that (1) he received ineffective assistance of counsel at trial because his attorney failed to adequately prepare his defense, inadequately cross-examined government witnesses

and failed to object to the admission of certain"altered" evidence, (2)

at trial, the government engaged in improper prosecutorial bolstering,

and (3) he was not given notice pursuant to 21 U.S.C. § 851(a)(1) of

the government's motion to enhance his sentence under the career

offender portion of the Sentencing Guidelines.

The district court found that Fox's contentions were without merit

and denied the requested relief. On appeal, Fox now contends that (1)

he was denied effective assistance of counsel on direct appeal because

his counsel failed to raise a meritorious claim of improper prosecu-

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torial bolstering and (2) he was denied effective assistance of counsel

at both trial and upon appeal because his counsel failed to challenge

at either stage of the proceedings the district court's curtailment of

counsel's cross-examination of the government's key witness.

I

At Fox's trial, the government presented the testimony of a paid

informant, Tony Phillips. Phillips testified that, following the instructions of Huntington Police Officer Donald Black, he had made

arrangements to purchase cocaine from Fox. The purchase was scheduled for the night of June 20, 1988. Prior to the purchase, Officer

Black fitted Phillips with a transmitter and provided Phillips with

$650.00 to purchase cocaine. During the transaction, Officer Black

recorded the conversations between Phillips and Fox.

Phillips had arranged to purchase a quarter ounce of cocaine from

Fox. However, when the transaction occurred, Fox was only able to

obtain 3/16ths of an ounce of cocaine. Arrangements were made for

an associate of Fox to deliver the additional 1/16th of an ounce of

cocaine to Phillips at a later time. This transaction occurred approximately one hour later. Fox was not present at this time.

A second controlled buy occurred on July 15, 1988. At that time,

Phillips had arranged to purchase one ounce of cocaine from Fox.

Again, Phillips was fitted with a transmitter and Officer Black provided him with money to purchase the cocaine. Again, Fox did not

have the amount of cocaine agreed upon when he met with Phillips.

At that time, Phillips obtained one-half of an ounce of cocaine which

was contained in eight small bags. This transaction was also recorded

and monitored by Officer Black.

At trial, Phillips testified as to the transactions with Fox. Phillips

further admitted to being a drug addict and user at the time the transactions occurred. Phillips also described what physical actions were

occurring at the time of his transactions with Fox while the jury listened to audiotape recordings of the transactions. On crossexamination, defense counsel challenged Phillips' credibility by questioning whether Phillips was affected by his drug use.

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Officer Black testified at the trial about how the police targets individuals for investigation and how paid informants are used to purchase cocaine. On cross-examination, defense counsel questioned

Black as to Phillips' reliability and credibility. Officer Black stated

that he believed Phillips could be trusted to follow instructions and

to accurately report about what occurred during a controlled buy. On

re-direct, over objection, Black further testified that he believed Phillips was credible because Phillips had provided information which

had resulted in other individuals being indicted and convicted.

Fox's trial counsel raised three issues on his direct appeal. First,

Fox contended that the trial court erred when it admitted FBI agents

testimony that it was Fox's voice on the audiotape of the controlled

buys. Second, Fox contended that the government failed to establish

the chain of custody of the cocaine which was admitted as an exhibit

at trial. Finally, Fox contended that he was improperly convicted of

multiple crimes arising out of a single drug transaction. This Court

found no merit to any of Fox's claims and his conviction was

affirmed. On June 30, 1992, Fox filed his motion for relief pursuant

to 28 U.S.C. § 2255.

II

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme

Court articulated a two-prong test that a petitioner must satisfy to successfully assert an ineffective assistance of counsel claim: a petitioner

must show (1) "that counsel's representation fell below an objective

standard of reasonableness" and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceedings would have been different." Id. at 694. The reviewing

court "must judge the reasonableness of counsel's challenged conduct

on the facts of the particular case, viewed as of the time of counsel's

conduct." Id. at 690. Further, there is"a strong presumption that counsel's conduct falls within the wide range of reasonable professional

assistance . . . ." Id. at 689.

A criminal defendant's right to effective assistance of counsel continues through a direct appeal. See Evitts v. Lucey, 469 U.S. 387

(1985). As noted Mayo v. Henderson, 13 F.3d 528 (2d Cir. 1994),

ineffective assistance of appellate counsel may be shown if a peti-

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tioner can "establish . . . that counsel omitted significant and obvious

issues while pursing issues that were clearly and significantly weaker

. . . . Generally, only when ignored issues are clearly stronger than

those presented, will the presumption of effective assistance of counsel be overcome." Id. at 533 (citations omitted). However, a criminal

petitioner has not necessarily received ineffective assistance when his

counsel fails to present every non-frivolous issue on appeal. An attorney may decline to appeal a non-frivolous issue if appealing a weak

issue would have the effect of diluting stronger arguments on appeal.

Jones v. Barnes, 463 U.S. 745, 752 (1983).

As noted above, Fox contends he received ineffective assistance of

appellate counsel because his appellate counsel failed to raise a claim

of prosecutorial bolstering on direct appeal. On April 10, 1990, less

than one month after affirming Fox's conviction on direct appeal, this

Court addressed prosecutorial bolstering in United States v. Taylor,

900 F.2d 779 (4th Cir. 1990). Taylor is especially relevant to this

appeal because it also involved controlled drug purchases made by

Tony Phillips and orchestrated by Officer Black.

During the trial in Taylor, evidence was presented that Phillips,

again acting as a paid informant, arranged to purchase a controlled

substance from Taylor. That transaction was to be recorded through

a transmitter placed on Phillips. While the controlled buy took almost

thirty minutes, the government was only able to produce eight minutes of audiotape, most of which was inaudible. In addition to Phillips, Officer Black testified about the controlled buy. Following

Black's cross-examination, Black testified on redirect that Phillips

had given reliable information in other cases which resulted in several

guilty pleas. Additionally, Black testified that Taylor had been targeted as a result of several anonymous complaints. Finally, in closing

argument, the prosecuting attorney emphasized Black's testimony as

to Phillips' reliability.

Citing Fed. R. Evid. 608(b) which states that "[s]pecific instances

of the conduct of a witness, for the purpose of . . . supporting the witness' credibility . . . may not be proved by extrinsic evidence[,]" this

Court held that the trial court erred by admitting Black's testimony

that Phillips had provided reliable information resulting in other convictions and by admitting testimony as to why Taylor was targeted for

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the investigation. This Court further found that the error was prejudicial in light of the limited probative value of the audiotape of the

transaction. This Court noted that whether the jury found Taylor

guilty or innocent depended almost exclusively on whether it believed

Phillips. As such, bolstering of that witness by Black and by the prosecutor during closing argument had more than a slight effect on the

outcome of the trial.

III

Before addressing Strickland's two-prong test, this Court must first

address whether the prosecution may have improperly bolstered the

testimony of Tony Phillips. As in Taylor, the government bolstered

Phillips' credibility through the testimony of Officer Black who stated

that Phillips' testimony had led to other indictments and convictions.

This Court finds that such testimony may have amounted to improper

bolstering. At Fox's trial, the government elicited testimony from

Officer Black to support the testimony of Phillips. Black's testimony

that Phillips provided information leading to other convictions and

indictments is the type of evidence prohibited by Fed. R. Evid.

608(b).

Having established that the trial court may have erred in admitting

the testimony of Officer Black which bolstered Phillips' testimony,

this Court must now address whether the failure of Fox's counsel to

appeal that issue on the direct appeal amounts to ineffective assistance

of counsel. Generally, failure to anticipate a new rule of law is not

ineffective assistance of counsel. Honeycutt v. Mahoney, 698 F.2d

213, 217 (4th Cir. 1983) (holding that counsel's failure to anticipate

the Supreme Court would find a state law in violation of the Fourteenth Amendment does not amount to ineffective assistance of counsel). However, this Court finds that this matter cannot be resolved

under Honeycutt as this Court finds that Taylor did not establish new

law for this circuit but rather merely applied Fed. R. Evid. 608(b) to

the facts in that case. As such, this Court cannot say that Fox's counsel acted as a reasonable attorney simply because Taylor had not yet

been decided. This Court must still address Fox's appellate counsel's

actions under the Strickland test.

Initially, this Court notes that Fox's case is distinguishable from

Taylor. First, the manner in which Officer Black's testimony concern-

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ing the other arrests and indictments was introduced in this case is different than in Taylor. In Taylor, the bolstering testimony was

introduced after the prosecuting attorney questioned Officer Black

about why Taylor had been targeted for investigation. In this action,

the testimony was introduced on redirect and only after Fox's own

attorney questioned Black regarding Phillips' reliability.

This Court believes that based upon the facts of Fox's trial, Fox's

attorney had the option of appealing several issues, including prosecutorial bolstering. Although Taylor cannot be seen as creating new law,

it can, in hindsight, be viewed as a suggestion that prosecutorial bolstering was a viable issue for appeal for Fox. However, at the time of

Fox's direct appeal, this Court had not decided Taylor. As such, Fox's

counsel could have seen the prosecutorial bolstering argument as a

potentially weak argument in light of the government's likely contention that it was merely rehabilitating its witness.

Also, as previously stated, failure of appellate counsel to address

all non-frivolous issues which may be raised on appeal does not

amount to ineffective assistance. See Jones, supra. While "the mind

of an appellate judge is habitually receptive to the suggestion that a

lower court committed an error[,] receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one . . . ." Id., 463 U.S. at 752 (quoting Jackson

Advocacy Before the Supreme Court, 25 Temple Law Quarterly 115,

119 (1951)). Appellate counsel had several issues to which objection

was raised at trial including the issue of bolstering. As stated in Mayo,

ineffective assistance of appellate counsel may be shown only if the

petitioner establishes that counsel omitted obvious and significant

issues while pursuing clearly weaker issues. However, as Taylor had

not yet been decided, and in light of the factual differences between

Taylor and Fox's trial, a reasonable attorney could determine that the

bolstering issue was not significantly stronger than the issues actually

appealed. Accordingly, although certain factors point toward the conclusion that prosecutorial bolstering was a viable issue for appeal, we

cannot conclude that counsel's conduct did not fall within the wide

range of reasonable professional assistance. Thus, Fox has failed to

establish the first prong of the Strickland test.

Second, assuming that Fox could have shown that his counsel's

conduct fell below that of a reasonable attorney, this Court finds that

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Fox has not shown that but for appellate counsel's errors the result of

the appeal would have resulted in a different outcome. As noted

above, the government's case in this action does not share the same

infirmities raised by the defendant in the Taylor case. Unlike Taylor,

the audiotape of Fox's transaction is complete. As such, the jury did

not need to rely solely on the testimony of Tony Phillips to find Fox

guilty. Further, in this action the government merely presented testimony as to how the police targeted suspects, but did not bolster Phillips' testimony by saying it had specifically targeted Fox. Finally, the

government did not emphasize Officer Blacks testimony about Phillips' reliability in its closing argument. This Court finds that the dissimilarities between this case and Taylor are sufficient for us to

conclude that even if Fox's counsel had appealed the bolstering issue,

there is no guarantee that this Court would have decided this case the

same as we decided Taylor. As such, Fox has not shown that there is

a reasonable probability that, but for the failure to appeal the bolstering issue, the result of the direct appeal would have been different.

Finally, this Court finds that the district court should be affirmed on

all other issues.

Accordingly, this Court finds that the order of the district court

denying the petition should be and it hereby is

AFFIRMED.

MURNAGHAN, Circuit Judge, dissenting:

Applying the governing test articulated in Strickland v.

Washington, 466 U.S. 668, 694 (1984), I find Fox's counsel ineffective for failing to present the improper bolstering argument on appeal.

While I agree with the majority's determination that United States v.

Taylor, 900 F.2d 779 (4th Cir. 1990), did not create a new rule of law,

I do not agree that because the opinion was rendered after Fox's direct

appeal, Fox's attorney could reasonably have judged the prosecutorial

bolstering claim weak.

The law underlying Taylor was clearly established before the filing

of Fox's appellate briefs in October and December 1989. On appeal,

therefore, a competent attorney would have challenged the trial

judge's decision to overrule defense objections and admit the bolster-

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ing testimony unless he had a strategic reason for not doing so. Furthermore, Fox has shown that, in light of United States Supreme

Court and Fourth Circuit precedent, a reasonable attorney would have

recognized the vulnerability of each of the three challenges that were

presented on appeal. Therefore, Fox has sufficiently demonstrated

that "counsel omitted [a] significant and obvious issue[ ] while pursuing issues that were clearly and significantly weaker." Mayo v.

Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 115 S. Ct. 81

(1994).

Moreover, Fox has established with reasonable probability that the

outcome of his appeal would have been different had his attorney pursued the bolstering claim. Strickland, 466 U.S. at 694; Mayo, 13 F.3d

at 534. In asserting that there is "no guarantee" that the challenge

would have been successful on direct appeal, the majority applies an

improper standard. Strickland requires the petitioner to show only

"that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceedings would have been different." 466 U.S. at 694.

As noted in Mayo, "[t]he outcome determination . . . may be made

with the benefit of hindsight." 13 F.3d at 534. Here, hindsight demonstrates that, in our circuit, such improper bolstering is not harmless.

In Taylor, we ordered a new trial after finding that the prosecution

had improperly used techniques similar to those employed at Fox's

trial in order to bolster the credibility of the same government informant. 900 F.2d at 783. While there are some differences between the

circumstances in the present matter and in Taylor, those deviations

are not significant enough to compel a different outcome.* In both

cases, Phillips, the confidential informant, was the government's critical witness. His experience allowed him to offer the only direct evidence of drug dealing by the defendant. While in Fox's case, a police

detective could place Fox at the location of the drug sales and an FBI

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*Prosecutorial misconduct, which includes improper bolstering, is

often viewed as harmless when the judge has given a curative or limiting

instruction and the case is not a close one. See United States v. Kerr, 981

F.2d 1050, 1053-54 (9th Cir. 1992); United States v. Moore, 710 F.2d

157, 160 (4th Cir.), cert. denied, 464 U.S. 862 (1983). Here, neither circumstance is present.

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agent could say that the voice on the tape sounded like Fox. Phillips's

testimony was the only first-hand proof of Fox's guilt. Furthermore,

although the prosecution offered audiotapes to corroborate Phillips's

testimony, they would have been close to meaningless without the

informant's accompanying explanation of the transactions.

Therefore, as with Taylor, whether the jury found Fox guilty or

innocent depended chiefly on whether it believed Phillips. The evidence of other indictments and convictions obtained with Phillips's

prior cooperation may indeed have helped establish his credibility in

the minds of the jury. Without such evidence, the jury may well have

discounted Phillips's testimony as the unreliable words of a drug

addict and acquitted Fox. These considerations may bring reasonable

doubt into play. Because the improper evidence may have thus

affected the verdict, counsel had a reasonable likelihood of success on

direct appeal. Mindful that "[a] reasonable probability is a probability

sufficient to undermine confidence in the outcome," Strickland, 466

U.S. at 694, I therefore find a reasonable probability that the outcome

of the direct appeals would have been different if the improper bolstering claim had been pursued.

In sum, I find counsel's failure to challenge the prosecutorial bolstering both incompetent and prejudicial. Accordingly, I would grant

Fox the relief he seeks. In all other respects, I find the majority's

opinion acceptable and, hence, concur on the remaining issues.

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