United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-3495

___________________________

Billie Jerome Allen,

lllllllllllllllllllllPetitioner - Appellant,

v.

United States of America,

lllllllllllllllllllllRespondent - Appellee.

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________

 Submitted: January 12, 2016

 Filed: July 20, 2016

____________

Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.

____________

COLLOTON, Circuit Judge.

Billie Jerome Allen was convicted on two charges arising from an armed bank

robbery that resulted in the death of a bank security guard, and he was sentenced to

death. He later moved to vacate his sentence under 28 U.S.C. § 2255 on several
grounds. The district court denied Allen’s motion. We granted a certificate of 1

appealability on one question: Whether Allen was denied effective assistance of

counsel when his trial counsel failed to object to the empaneling of an anonymous

jury. We conclude that counsel’s failure to argue for an extension of the law to forbid

the jury procedures in Allen’s case did not constitute ineffective assistance of

counsel, and we therefore affirm.

In 1997, a grand jury charged Allen with killing a bank security guard in the

course of an armed bank robbery,see 18 U.S.C. § 2113(a), (e), and using and carrying

a firearm during and in relation to an armed bank robbery that resulted in a death by

murder. See 18 U.S.C. § 924(c)(1), (j)(1). The government filed a timely notice of

intent to seek the death penalty.

Before jury selection, in accordance with 18 U.S.C. § 3432, the district court

ordered disclosure of the names and addresses of all venirepersons to Allen’s counsel

and the government. Each venireperson was given an identifying number, but the

parties did not know which number was assigned to which name. The parties also

received detailed questionnaires that the prospective jurors completed. On those

documents, the jurors were identified only by number. Before voir dire, the court

informed the prospective jurors that they would be identified only by number during

court proceedings. The parties then addressed the prospective jurors by number and

professed ignorance of their names. A jury was seated based on the use of numbers,

and the case proceeded to trial in February 1998. The jury ultimately convicted Allen

on both counts, and he was sentenced to death.

This court affirmed Allen’s convictions and sentences on direct appeal. United

States v. Allen, 406 F.3d 940, 942 (8th Cir. 2005) (en banc). Allen sought relief under

The Honorable E. Richard Webber, United States District Judge for the

1

Eastern District of Missouri.

-2-
28 U.S.C. § 2255, and the district court denied the motion. Allen v. United States,

No. 4:07CV00027 ERW, 2014 WL 2882495, at *160-61 (E.D. Mo. June 25, 2014). 

This court then granted a certificate of appealability on the question raised here.

Allen contendsthat his counsel wasineffective under the Sixth Amendment for

failing to object to the empaneling of an anonymous jury. He argues that the district

court erred in denying the claim and, at a minimum, should have held an evidentiary

hearing to inquire into counsel’s thought process. We review the district court’s legal

conclusions de novo. The decision to resolve a § 2255 motion without a hearing is

reviewed for abuse of discretion, but whether a hearing was necessary depends in part

on our de novo review of the court’s ruling on the merits of the claim. Jeffries v.

United States, 721 F.3d 1008, 1014 (8th Cir. 2013). 

To establish a violation of the Sixth Amendment right to effective assistance

of counsel, Allen must show that his trial counsel’s performance was deficient and

that Allen suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687

(1984). Ourscrutiny of counsel’s performance is “highly deferential,” id. at 689; the

movant must show that counsel’s performance fell “outside the wide range of

professionally competent assistance” that is sufficient to satisfy the Sixth

Amendment. Id. at 690. The failure of counsel to anticipate a rule of law that has yet

to be articulated does not render counsel’s performance professionally unreasonable. 

Fields v. United States, 201 F.3d 1025, 1027-28 (8th Cir. 2000); see New v. United

States, 652 F.3d 949, 952 (8th Cir. 2011); Anderson v. United States, 393 F.3d 749,

754-55 (8th Cir. 2005).

The dispute in this case centers on whether counsel should have objected to the

empaneling of an “anonymous” jury. This court has approved the use of anonymous

juries in certain circumstances and set forth factors to guide a determination about

whether such a procedure is warranted. United States v. Darden, 70 F.3d 1507, 1532-

33 (8th Cir. 1995). Allen argues that his counsel should have objected to the use of

-3-
numbers to identify the jury on the ground that the procedure made the jury

“anonymous,” and that the circumstances of this case did not justify the procedure. 

He contends that the use of numbers prejudiced his defense because the practice led

the jury to believe that he was dangerous.

To examine the reasonableness of counsel’s performance, we must consider the

state of the law at the time of trial concerning whether a jury was properly

characterized as “anonymous.” The two leading cases in the area were United States

v. Lee, 886 F.2d 998 (8th Cir. 1989), and Darden, decided in 1995. In Lee, the trial

judge assigned numbers to each member of the venire during jury selection and said

that all references to the jurors would be by numbers. The defense possessed the

names of the jurors, but it is unclear from the decision whether counsel knew which

number corresponded to which name. On appeal, the defendants argued that the use

of numbers to identify the jurors was an unconstitutional “anonymous” jury. This

court rejected the claim, holding that there was “no prejudice in the court’s

procedure” because “defendants’ counsel were provided with the names of the

jurors.” Id. at 1001-02. The court in Darden then ruled that a jury was “anonymous”

when a trial judge refused to disclose the names of the venirepersons to the parties. 

70 F.3d at 1532.

Given the state of the law at the time of trial, it was not professionally

unreasonable for counsel to forego an objection to the district court’s procedure for

identifying the jurors. Lee held that where a district court disclosed the names of

jurorsto defense counsel, but then identified the jurorsin court only by number, there

was “no prejudice in the court’s procedure.” 886 F.2d at 1001-02. It was unsettled

whether Lee should be limited to a case where the court also provides defense counsel

with a list that shows which number has been assigned to which named juror. The

opinion in Lee did not explain whether counsel possessed that information. Allen’s

counsel might have urged the district court to construe Lee narrowly and to extend

Darden to a case where counsel was provided with the names of jurors but did not

-4-
know which name matched which numbered juror in the courtroom. But the failure

of counsel to argue for an extension of the law or a novel interpretation of circuit

precedent is not constitutionally deficient performance. New, 652 F.3d at 952-53;

Anderson, 393 F.3d at 754-55; Fields, 201 F.3d at 1027-28.

Allen complains that the district court at least should have held an evidentiary

hearing to determine why trial counsel declined to object to the jury procedure. A

petitioner is entitled to an evidentiary hearing on a § 2255 motion “[u]nless the

motion and the files and records of the case conclusively show that the prisoner is

entitled to no relief.” 28 U.S.C. § 2255(b). But “no hearing is required where the

claim is inadequate on its face.” New, 652 F.3d at 954 (quotation omitted).

“The Strickland test . . . is an objective one; as long as counsel performed as

a competent lawyer would, his or her detailed subjective reasoning is beside the

point.” Cofske v. United States, 290 F.3d 437, 444 (1st Cir. 2002); see Thomas v.

Varner, 428 F.3d 491, 500-01 & n.10 (3d Cir. 2005); Chandler v. United States, 218

F.3d 1305, 1315 & nn. 16-17 (11th Cir. 2000) (en banc); Bonin v. Calderon, 59 F.3d

815, 838 (9th Cir. 1995). “The relevant question is not whether counsel’s choices

were strategic, but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S.

470, 481 (2000). In light of the circuit precedent in Lee and Darden, it was

objectively reasonable for trial counsel to acquiesce in the district court’s jury

procedure. As in Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002), where

a movant unsuccessfully attacked counsel’s performance for failing to anticipate

Apprendi v. New Jersey, 530 U.S. 466 (2000), no evidentiary hearing was necessary

to resolve the claim.

The judgment of the district court is affirmed.

______________________________

-5-