In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3774

Michael Reeves,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 4537--James B. Zagel, Judge.

Argued May 14, 2001--Decided June 22, 2001

 Before Bauer, Rovner, and Diane P. Wood,

Circuit Judges.

 Bauer, Circuit Judge. Michael Reeves

filed a petition under 28 U.S.C. sec.

2255 challenging his conviction as

obtained in violation of his Sixth

Amendment right to effective assistance

of counsel. The district court denied the

petition because Reeves failed to

demonstrate prejudice. Reeves appeals,

and we review the denial of relief under

sec. 2255 de novo. See Blacharski v.

United States, 215 F.3d 792, 794 (7th

Cir. 2000).

BACKGROUND

 Reeves, represented at trial by attorney

Christopher L. Bohlen (and L. Patrick

Power, whose nominal role will not be

discussed), was convicted by a jury in

June of 1998 of mail fraud under 18

U.S.C. sec. 1341 for using the mails in a

scheme to defraud his employer, Cherry

Communications, Inc. ("CCI"), of money

for work on two projects that he failed

to complete and for depriving CCI of

honest services by not disclosing his

self-dealing.

 At trial the following evidence was

adduced. CCI was a long-distance

telephone company headquartered in

Westchester, Illinois owned by James

Elliot. Elliot and CCI’s President,

Michael Dyer, wanted to expand the
business by constructing switch sites to

route calls on its long-distance network.

Lacking the skill to do this themselves,

they hired Reeves as Vice President of

Engineering in January of 1995. Reeves’

resume indicated that he had completed

two years at MIT and two years at Florida

State University, earning a B.S. in

electrical engineering. Elliot and Dyer

bragged to others that Reeves had a

"double E from MIT." In reality, while

Reeves had taken some classes, he never

earned a degree.

 To purchase equipment to construct the

switch sites, Reeves was instructed to

submit a check requisition form to Elliot

for approval and then to CCI’s

comptroller, Cherrie Marks-Pozniak, who

would issue a check. On July 6, 1995,

Reeves submitted a check requisition form

to Elliot for the purchase of $6,627

worth of equipment to be installed at the

South Federal Street switch site in

Chicago from a company named Electronic

Products located at 6645 La Pas,

Indianapolis, Indiana 60164. Elliot

approved the request and Marks-Pozniak

gave Reeves a check payable to Electronic

Products, whereupon it was endorsed with

a typewriter and deposited in a bank

account Reeves had opened under the name

Electronic Renaissance.

 On July 14th, Reeves submitted another

form to Elliot for more equipment for the

South Federal Street site payable to

Electronic Products for $15,172. The

address listed for Electronic Products

this time though was 6264 La Pas,

Indianapolis, Indiana 60155. Furthermore,

an invoice submitted with the check

requisition form listed yet another

address for Electronic Products--P.O. Box

307, Bradley, Illinois--which had been

rented by Reeves under the name

Electronic Renaissance. The invoice also

stated that the equipment was to be

billed and shipped to CCI at 6264 La Pas,

Indianapolis, Indiana 60155. Despite

these inconsistencies, Elliot approved

the request, and again, a check was given

to Reeves, endorsed with a typewriter,

and deposited in the Electronic

Renaissance bank account.

 In August, Reeves recommended that CCI

buy alarm systems to secure its unmanned

switch sites. Elliot and Dyer approved

the purchase of the systems for over
$88,000, to be paid in four monthly

installments. Reeves submitted a form for

the first installment, to be paid to a

company named Digital Alarm Products at

P.O. Box 172, Bradley, Illinois. MarksPozniak asked Reeves if she should

contact the vendor to set up a payment

schedule. Reeves insisted that he ask

himself because the vendor was "touchy"

and "didn’t like to talk to just

anybody." CCI issued the first

installment check on September 7th for

$22,173. Reeves was given the check, it

was endorsed with a typewriter and

deposited in the Electronic Renaissance

bank account.

 On September 8th, although CCI was

unaware of Reeves’ dealings, he was fired

for poor job performance. Still ignorant,

on October 18th, CCI issued a $22,173

check for the second installment. Since

Reeves was gone, CCI mailed it to the

P.O. Box listed on the invoice, which

unbeknownst to CCI was rented by Reeves.

As before, the check was endorsed with a

typewriter and deposited in the

Electronic Renaissance bank account.

 Robert Carrabis, who became Vice

President of Engineering after Reeves’

termination, noticed that the alarm

system had never been delivered, so he

called Digital Alarm Products to inquire

and heard Reeves’ voice on the company’s

answering machine. Finally realizing that

something was amiss, CCI hired a private

investigator and informed the police.

They discovered that neither the Illinois

nor Indiana Secretary of State offices

had records for companies named

Electronic Products or Digital Alarm

Products.

 At trial, the government charged that

Reeves’ scheme was to submit false forms

from phony equipment suppliers to obtain

money from CCI to satisfy his personal

debt. To prove its theory, the government

offered the testimony of Elliot, Dyer,

Carrabis, Marks-Pozniak, and a postal

inspector who attested that the addresses

given for Reeves’ companies were

fictitious. A bank employee also

introduced the Electronic Renaissance

account records and a summary chart of

expenditures made from the account with

money from CCI. It was also shown that

Reeves’ bank account had been overdrawn

several times in the months before he
undertook this scheme, and in June of

1995 his balance was $8.17. The

government also proved that checks

written on the Electronic Renaissance

account with CCI’s money were issued to,

among others, American Express, Kankakee

Bell Credit Union for a loan payment,

Ameritech, Dr. Martello, Reeves himself,

and cash. Other documentary evidence

included the check requisition forms and

invoices submitted by Reeves and his 1995

federal income tax return showing that he

did not report income realized by his

companies from CCI.

 Reeves’ attorney cross-examined the

government’s witnesses. Reeves did not

take the stand or present witnesses in

his defense. Reeves’ defense was that the

government failed to meet its burden of

proof because Elliot’s testimony was

incredible in light of his prior criminal

convictions, and the government had

failed to prove that any check had been

mailed using the U.S. Postal Service. 

 After Reeves was convicted and

sentenced, he filed a direct appeal,

voluntarily dismissed it, and then filed

a sec. 2255 petition. The district court

permitted discovery, held an evidentiary

hearing, and heard oral arguments on

Reeves’ sec. 2255 petition.

 At the evidentiary hearing on April 14,

2000, Reeves testified that Bohlen met

with him three times prior to trial-- in

September of 1997, and in February and

May of 1998-- and that the brief meetings

were not substantive. Bohlen testified

that he did not take notes of these

meetings and could not recall what had

been discussed. At the first meeting

Reeves told Bohlen to visit the South

Federal Street site because he had

purchased and installed equipment there.

Bohlen confirms that Reeves said this,

but admits that he did not go see whether

the equipment was indeed there. Reeves

also told Bohlen that some of the alarm

system equipment was at his home, but

again, Bohlen did not investigate the

claim. Reeves further said to Bohlen that

he had partially performed on the alarm

system project by diagraming a plan and

gathering parts, which were still in his

garage. He claimed that he would have

finished if he had received the final two

installment checks. Instead of

investigating, Bohlen asked Reeves for
documentation of the purchases, but

Reeves did not have any. Bohlen admitted

that in preparing for trial he did not

interview anyone except Reeves and told

him not to testify. 

 In support of his contention that he had

fully performed the South Federal Street

job and partially performed the alarm

system project, Reeves offered a report

of a private investigator who visited the

South Federal Street site and Reeves’

garage, accompanied by Reeves. The report

said that there was equipment at the

South Federal Street site, which Reeves

identified as the equipment he had

purchased. It also stated that there was

electrical equipment in Reeves’ garage.

Reeves also offered copies of a

memorandum he had written to Dyer dated

September 6th, two days before he was

fired, detailing the work he had

completed and of a letter he wrote to

Elliot in November, offering to complete

the alarm project despite his

termination. Reeves had given Bohlen

these documents, but they were not used

at trial. Furthermore, Reeves testified

that Elliot asked him to purchase

equipment through his companies because

CCI was having financial difficulties.

Reeves claimed that his companies had

been in business for many years and were

not fictitious, and he was ignorant of

the fact that he had to register with the

Secretary of State.

 Finally, Reeves testified about his

personal background, specifically that he

had served in the military for ten years

where he enjoyed FBI and top-security

clearance and had worked for several

telecommunications companies before CCI.

He explained that he took some classes at

MIT over a two-year period, but denied

that he told Elliot or Dyer that he was

a "double E from MIT."

 On cross-examination, Reeves said that

he had no documentation, such as invoices

or checks, to show that he bought

equipment for CCI. He admitted that he

used fictitious addresses on the check

requisition forms. He could not explain

why he was the only signatory on the

Electronic Renaissance bank account since

he claimed that the company was owned by

someone else. Further, the government

offered evidence admissible under Fed. R.

Evid. 404(b), namely that Reeves had made
false statements in bank loan

applications, in his resume to CCI, in

his 1995 federal income tax return, and

in the unemployment application he filed

with the State after he was fired from

CCI.

 Reeves contends that the new evidence

supports his defense that he did not

intend to defraud CCI. The district court

saw it otherwise and denied the sec. 2255

petition. The court noted that it found

Bohlen’s "performance in preparing for

this trial to be dangerously and

inexcusably close to the line of

ineffective assistance, if not over it.

While the law presumes an attorney’s

competence and reasonableness, I can find

no reasonable trial strategy in failing

to investigate a case at all." However,

the district court declined to hold that

Bohlen’s performance, even if

ineffective, prejudiced Reeves’ case.

 The district court summarized that all

of the "new" evidence emanated from

Reeves or the investigator, whose work

was based on what Reeves told him. For

example, the memorandum and letter were

written by Reeves. No other witnesses,

such as a vendor, testified that Reeves’

businesses were legitimate or that he had

purchased equipment for the projects. No

invoices, receipts or checks were

produced to verify that he had purchased

equipment. No explanations were given as

for why Reeves used fictional addresses

on check requisition forms. The district

court found that Reeves’ self-serving

evidence did not undermine confidence in

the outcome. The court wrote:

"Ultimately, all of the additional

evidence comes from Reeves himself uncor

roborated . . . and given his own

credibility problems, its submission to

the jury would not have produced a

different result."

 The district court also found that the

additional impeachment evidence for

Elliot, namely the fact that he owned CCI

when it went bankrupt and had judgments

entered against it for nonpayment of

taxes, would not have damaged his

credibility beyond that already done at

trial. Elliot’s prior convictions had

already been testified to in order to im

peach him at trial, so the jury weighed

his two convictions for mail fraud and

one conviction for providing false infor
mation to a federal law enforcement

officer in assessing his credibility.

Further, the jury heard and considered

the parties’ stipulation that CCI had

filed a voluntary bankruptcy petition at

the time of trial. The district court

reasoned that since the defense offered

no motive for Elliot to lie, there was no

reasonable probability that a jury would

assess Elliot’s credibility differently.

 The district court concluded that:

"[h]aving personally heard Reeves testify

at the evidentiary hearing, and

remembering the evidence as it came in at

trial, I do not agree that Reeves’

testimony--had it been offered--alone

would have changed the verdict." The

court so held because Reeves had "too

many empty explanations for the many

oddities in his business practices," the

"fictional nature of the addresses, their

mix-and-match nature, and his failure to

register any of them with the Secretary

of State, all undermines his testimony

about the businesses’ legitimacy," and

Reeves’ explanations were "not persuasive

evidence of his innocence." The court

also added that the government had

effectively cross-examined Reeves. Based

on all of the foregoing, the district

court denied Reeves’ petition.

DISCUSSION

 Under Strickland v. Washington, Reeves

bears the burden of showing that his

counsel’s performance fell below an

objective standard of reasonableness and

outside the wide range of professionally

competent assistance. See 466 U.S. 668,

687 (1984). He must also show prejudice,

which means showing that but for his

counsel’s unprofessional errors, there is

a reasonable probability that the result

in his case would have been different.

See id. at 694. A reasonable probability

is a probability sufficient to undermine

confidence in the outcome, although

merely some conceivable effect of the

errors on the outcome is not enough. See

id.

 Reeves’ first argument is that the

district court applied the wrong legal

standard to his case. In the beginning,

the district court articulated the proper

standard; Reeves’ contention is that

after the district court mouthed the

correct standard it turned around and
held him to a higher one. Reeves contends

that the district court misapplied the

prejudice prong of Strickland by (1)

requiring him to prove that he was

actually innocent, (2) requiring him to

prove that the outcome would have more

likely than not been different but for

his attorney’s errors rather than just a

reasonable probability of a different

outcome, and (3) resting its decision

solely on Reeves’ credibility instead of

the totality of the circumstances. Reeves

misreads the court’s opinion.

 While Reeves is correct that requiring

a defendant to prove actual innocence or

that the outcome would have more likely

than not been different would be an

incorrect articulation or application of

the prejudice test, see generally Glover

v. United States, 121 S. Ct. 696, 700-01

(2001), Williams v. Taylor, 120 S. Ct.

1495, 1513-14 (2000), we find that after

giving the district court’s opinion a

thoughtful read that there is not a

scintilla of support for Reeves’ analysis

of the district court’s opinion. It is

enough to say that Reeves’ appellate

argument quotes the words chosen by the

district court out of context. The very

heart of the opinion was an examination

of the totality of the evidence to

determine whether the court’s confidence

in the jury’s verdict was undermined by

the new evidence. The district court

concluded that his confidence in the

verdict remained intact.

 Reeves’ second argument is that if the

district court had applied the correct

standard it would have found that his

case had been prejudiced. We disagree.

Reeves paints the government’s case as

based on weak circumstantial evidence and

Elliot’s incredulous testimony. Given the

weakness of the case against him, he

asserts that if he had testified a

different outcome may well have resulted

because the jury would have been asked to

resolve a credibility contest between him

and Elliot. Not so. The case would not

have become merely a "he said, he said"

if Reeves had testified; not only did

Dyer and Marks-Pozniak corroborate

Elliot’s testimony, but the thrust of the

government’s case was documentary

evidence. In contrast, Reeves offered

self-serving statements and documentary

evidence of little relevance. The

memorandum and letter offered by Reeves
shed little light on the matter; they

were written by Reeves who had an

overwhelming interest in covering up what

he was or was not doing during his employ

at CCI.

 Reeves also complains that the district

court improperly based its decision

solely on his credibility. He asserts

that the district court should not have

decided whether it found Reeves credible,

but rather should have decided whether

confidence in the jury’s verdict had been

undermined. But, we read the opinion as

saying exactly the latter--after hearing

the evidence presented by the defendant,

the court’s confidence in the outcome had

not been undermined. This is quite

different from the court saying that it

did not think that a jury would believe

Reeves. Moreover, the district court

lingered on Reeves’ credibility as a

witness because, not only was it the bulk

of the new evidence, but one of Reeves’

claims was that Bohlen was deficient for

not allowing him to testify. In response

the court evaluated whether the new

evidence presented through Reeves’ testi

mony had a reasonable probability of

altering the result. The court’s opinion

carefully assessed all of the new

evidence, including Reeves’ testimony,

and found that it offered little, as do

we.

CONCLUSION

 The district court’s denial of Reeves’

sec. 2255 petition is hereby Affirmed.