___________ No. 95-4053

___________ Jerry L. McCauley-Bey, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Paul K. Delo, * * Appellant. *

__________ Submitted: September 10, 1996 Filed: October 10, 1996

__________ Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circui t Judges.

___________ MAGILL, Circuit Judge. Jerry McCauley-Bey, serving a life sentence for second degree murder, a consecutive life sentence for first degree assault, and two concurrent thirty-year sentences for armed criminal action, petitioned in distric t court for a writ of h abeas corpus. 28 U.S.C. § 2254. The district court conditionally granted the writ. The government appeals, and we reverse.

I. On July 21, 1988, McCauley-Bey got into an argument with GarlonMcCoy and several of McCoy's friends. The argument began after an intoxicated McCo yurinated near McCauley-Bey and McCauley-Bey's girlfriend, Sharo n Mitchell. McCauley-Bey's friend, Ricky

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Hil l, ran across the street and returned with two pistols. After th e argument, McCoy and his friends got into a van. McCauley-Bey and Hil l approached and McCauley-Bey began firing into the van. After the first gu n was emp tied, McCauley-Bey took the second gun from Hill and continue d shooting. McCoy was killed and his friend, Ronn ie Patrick, was wounded in the knee.
After McCauley-Bey's arrest but before trial, he received a lette r dated June 8, 1989, from trial counsel, Herman Jimerson, stating that thre e witnesses, James Massey, Tyrone Mitchell, and Ev a Washington, would not be called because of the ir prior criminal histories. McCauley-Bey responded witha letter dated June 12, 1989, expressing disappointment and stating that he still wanted the witnesses called. The witnesses did not testify. On June 29, 1989, a jury found McCauley-Bey guilty.
Raisi ng a claim of ineffective assistance of counsel based on hi s trial counsel's failu re to call the three witnesses, McCauley-Bey pursued state postconviction relief without success. McCauley-Bey was initially denied an evidentiary hearing on his ineffective assistance claim, bu t follo wing appeal to the Missouri Court of Appeals, a hearing was held
. State v. McCauley , 831 S.W.2d 741 (Mo. App. 1992 ). In anticipation of the evidentiary hearing, McCauley-Bey requested access to his legal records an d on July 16, 1990, was given at least part of his file. However, it i s unclear precisely whe n McCauley-Bey received copies of the aforementioned cor respondence with trial counsel. The evidentiary hearing was held o n September 15, 1992. The state courts rejected McCauley-Bey's claim o f ineffective assistance of counsel and found that trial counsel failed to call the three witnesses because their names had not been given to him
. McCauley v. State , 866 S.W.2d 892, 894-95 (Mo. App. 1993). On January 31, 1994, McCauley-Bey filed a federal petition for a writ of habeas corpus. McCauley-Bey reasserted his claim of

### The government also argues that the district court erred in 1 

### granting an evidentiary hearing after McCauley-Bey received a hea ring in state court and that, without the federal evidentiar y hearin g, the district court could not have found ineffectiv e assistance of counsel based onthe state court record. Because we find that there was no showing of prejudice based on the evidence actuallyreceived by the district court, we need not reach thes e issues. -3- ineffective assistance of counsel. On December 20, 1994, an evidentiary hearing was held to d etermine why the three witnesses had not been called by tri al counsel. On October 25, 1995, the district court granted a conditional writ of habeas corpus. The government now appeals.

II.

On appeal, the government argues that the prejudice prong of th e ineffe ctive assistance of counsel test was not satisfied by counsel' s failure to call the three witnesses. 1

The clai m of ineffective assistance of counsel is a mixed questio n of law and fact. Law s v. Armontrout , 863 F.2d 1377, 1381 (8th Cir. 1988) (en banc), cert. deni ed , 490 U.S. 1040 (1989). Accordingly, the district court's factual findi ngs are subject to the clearly erroneous standard of review, while the district court's legal conclusions are subject to de nov o review. Id. at 1381-82.

To be s uccessful in a claim of ineffective assistance of counsel a petitioner must demon strate that counsel's performance was deficient, and further, that the deficient performance prejudiced the defense. Stricklan d
v. Washington , 466 U.S. 668, 687 (1984). We need not decide if counsel wa s ineffec tive if sufficient prejudice is not shown. Id. at 697. To sho w prejud ice, "[t]he defendant must show that there is a reasonabl e probabilitythat, but for counsel's unprofessional errors, the result of the

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proceedi ng would have been different." Id. at 694. A reasonabl e probability is one sufficient to undermine confi dence in the outcome. Id. "[I]n d etermining the existence vel non of prejudice, the court 'mus t consi der the totality of the evidence before the judge or jury.' " Kimmelman v. Morrison , 477 U.S. 365, 381 (1986) (quoting Strickland , 466 U.S. at 695). Applying these standards here, th e petitioner has not shown prejudice.

In this case, we are required to add the proffered testimony o f McCauley-Bey's uncalled witnesses to the body of evidence that actually wa s presented at his tria l. Using this hypothetical construct, we must gauge the likel y outcome of a trial based on this total body of evidence
. Prejudice exists if there is a reasonable probability that the outcom e wou ld be different than that at the actual trial. In conducting thi s analysis , we are mindful of: (1) the credibility of all witnesses , including the likely impeachment of the uncalled defense witnesses; (2) th e interp layof the uncalled witnesses with the actual defense witnesse s calle d; and (3) the strength of the evidence actually presented by th e prosecution.
Fir st, the credibility of the uncalled witnesses is a part o f determining prejudice
. Wilson v. Kemna , 12 F.3d 145, 147 (8th Cir. 1994) (uncalled witness was married to defendant at the time and therefore was impeachable). McCauley-Bey's three uncalled wit nesses were all subject to impeac hment. Neither James Massey, Tyrone Mitchell, nor Eva Washingto n came forward promptly. James Massey could have been impeached with a prio r assaul t conviction. Tyrone Mitchell was the brother of McCauley-Bey' s girlfriend, Sharon Mitchell. Further, Tyrone Mitchell's ability to observ e could have been challenged. Initially, based on his testimony at th e evidentiary hearing, Mitchell would have testified at trial that he saw th e sho oting, that he saw McCauley-Bey and Sharon Mitchell running from th e shoo ting, and that he was ducking during the shooting. In addition , details of Tyrone Mitchell's account

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are not consistent with the testimony of other witnesses who testified tha t the shooting took place at night with the shooter firing into the van whil e standing between a truck and the van. By contrast, Mitchell would hav e stated th at the shooting took place at dusk and that he saw no truck
. Mitchell was approximately three blocks away from the shooting; if th e truck was there, it likely would have blocked Mitchell's view. Second, the testimony of the uncalle d witnesses is not considered in a vacuum. Strickland specifically directs that the totality of th e evidence be considered. 466 U.S. at 695. Thus, the interplay between the uncall ed witnesses and the defense witnesses actually presented is a t issue. McCauley-Bey presented himself, Ricky Hi ll, and Sharon Mitchell to establishthat he was not the gunman. However, Ricky Hill was impeached by pri or statements consistent with the government's version of events
. Previously, Hill had told police that both he and McCauley-Bey had fired the shots. He repeated that account when he entered his guilty plea
. Likewise, Sharon Mitc hell was impeached using a prior statement to police that McCauley-Bey was the gunman. Thus, even if the uncalled witnesse s were unimpeachable, which they clearly were not, their testimony would hav e been weakened when the same version of events was also told by tw o wi tnesses who earlier gave accounts consistent with the government' s witnesses. Finally, there is no prejudice if, factoring in the uncalle d witnes ses, the government's case remains overwhelming. Fast Horse v . Class , 87 F.3d 1026, 1029 (8th Cir. 1996); United States v. Hubbard , 2 2 F.3d 1410, 1422 (7th Cir. 1994), cert. denied , 1 15 S. Ct. 762 (1995). The substantial evidence against McCauley-Bey convinces us that there is not a rea sonable probability that the outcome of the trial would have bee n differ ent if the uncalled witnesses had testified. The governmen t presented four witnesses whose testimony contradicts the proffere d testimony of the unca lled witnesses. John Robinson, Ricky Davis, Michael Norman, and Ronnie

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Patric k all testified that McCauley-Bey fired shots into the van
. Robinson, Davis, and Norman also had previously identified McCauley-Bey as the gunman both in a photo array and a lineup.

III. The district court erred in finding prejudice and did not give proper weight to the credibility of the uncalled witnes ses, the interplay between the uncalled witnesses and the actual defense witnesses called, and th e strength of the evidence presented by the prosec ution. For these reasons, the judgment of the district court is reversed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.