2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-6-2005

USA v. McCoy

Precedential or Non-Precedential: Precedential

Docket No. 03-2607

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

 

No. 03-2607

 

UNITED STATES OF AMERICA

 v.

MARCRESSE MCCOY

a/k/a MARK SHINNE

a/k/a MARK CHIN

a/k/a JERRON MCCOY

 Marcresse McCoy,

 Appellant

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 98-cr-00005-2E)

District Judge: Honorable Sean J. McLaughlin

 

Argued February 14, 2005

Before: SLOVITER, AMBRO, and ALDISERT, Circuit Judges.

(Filed: June 6, 2005)

 

Bruce A. Antkowiak (Argued)

Greensburg, PA l5601

Attorney for Appellant
2

Bonnie R. Schlueter

Michael L. Ivory (Argued)

Paul M. Thompson

Office of United States Attorney

Pittsburgh, PA l5219

Attorneys for Appellee

 

 OPINION OF THE COURT

 

SLOVITER, Circuit Judge.

Marcresse McCoy appeals from the order of the United

States District Court for the Western District of Pennsylvania

denying his motion for a writ of habeas corpus pursuant to 28

U.S.C. § 2255. The sole substantive issue on appeal is whether

the District Court abused its discretion by denying an evidentiary

hearing. 

I.

A police officer in the Erie Area Gang and Law

Enforcement Task Force was informed by a reliable source that a

man named Joseph Barnette would be arriving in Erie,

Pennsylvania, from Detroit, Michigan via Greyhound bus on

March 17, 1998, at approximately 5:15 p.m. According to the

source, Barnette would be traveling with friends, would be

armed, and would be carrying crack cocaine. Based on this

information, Task Force agents established surveillance at the

bus station. 

When the scheduled bus arrived, a man matching

Barnette’s description exited the bus with no bags and made his

way to the front door of the bus terminal. Shortly thereafter,

three other black males carrying garbage bags and a blue canvas

duffel bag left the bus, exited the bus terminal through the front

door, and set their bags on the sidewalk next to Barnette. Police

Sergeants Joseph Kress and Robert Liebel observed that

Marcresse McCoy carried the blue duffel bag, while two other
3

individuals, later identified as Kendrick Grier and Michael

McQueen, carried the trash bags. Once outside, the four men

were observed sharing cigarettes and talking as if they knew

each other.

Officers approached the group of men, identified

themselves, and questioned each of the four men separately. The

officers received conflicting answers in response to inquiries of

whether the men knew each other, whether they had traveled

together, and the purpose of their visit. Barnette, for instance,

initially identified himself as “Ardell Griffen” and denied

knowing the other individuals. McCoy represented that his

name was “Mark Chin” and stated that he knew “Ardell

Griffen,” but denied knowing Grier, who was traveling under the

name “Carlton Davidson.” Grier, in contrast, admitted traveling

with both Barnette and McCoy. 

Because of these inconsistent responses, the officers

inquired as to the ownership of the garbage bags and blue duffel

bag. McCoy claimed ownership of two garbage bags and gave

officers permission to search them; they contained shoes, shoe

boxes, wet clothing, and a screwdriver. McQueen claimed

ownership of the remaining garbage bag, which contained

clothing. All four men denied ownership of the blue duffel bag. 

McCoy specifically denied carrying it from the bus. A search

revealed that the duffel bag contained 270 individually packaged

plastic baggies of crack cocaine, forty slightly-larger plastic

baggies of crack cocaine, a large ziploc-type bag containing one

pound of marijuana, a 9mm pistol wrapped in a towel, and a .380

caliber pistol hidden inside a pair of jeans.

All four men were arrested and taken into custody. 

Individual searches revealed that all four bus tickets, issued

under fictitious names, were purchased at the same ticket counter

within four minutes of each other and approximately ten minutes

prior to the scheduled departure. A search incident to McCoy’s

arrest revealed that he had possession of Barnette’s bus ticket in

the fictitious name of “Ardell Griffen,” along with his own ticket

in the fictitious name of “Mark Shinne.” McCoy also had a

pager in his possession. A number retrieved from the pager
For reasons not clear from the record, the two other 1

individuals, Kendrick Grier and Michael McQueen, were not

indicted. 

4

matched a number written on a piece of paper found in

Barnette’s pocket.

On April 14, 1998, a grand jury in the Western District of

Pennsylvania returned an indictment charging McCoy and

Barnette with violating federal drug and gun laws. A five count

superseding indictment was filed on June 16, 1998. Count One 1

charged that beginning on or about March 17, 1998 (the day of

the arrest), the defendants had conspired to distribute and

possess with intent to distribute cocaine base and marijuana in

violation of 21 U.S.C. § 846. Count Two charged that the

defendants possessed with the intent to distribute in excess of

fifty grams of cocaine base in violation of 21 U.S.C. §§ 841(a),

(b)(l)(A)(iii). Count Three charged the defendants with

possession with the intent to distribute less than 500 grams of

marijuana in violation of 21 U.S.C. §§ 841(a), (b)(1)(C). Counts

Four and Five charged Barnette and McCoy, respectively, as

convicted felons in knowing possession of firearms in violation

of 18 U.S.C. § 922(g)(1).

Prior to trial, the Government provided notice of its intent

to introduce Fed. R. Evid. 404(b) evidence against both Barnette

and McCoy. The Government sought to introduce evidence of

Barnette’s prior state felony drug conviction. As for McCoy, the

Government sought to introduce his 1991 felony conviction for

carrying a concealed weapon. Beyond these convictions, the

prosecution also intended to introduce testimony of the parties’

prior bad acts; specifically, it proffered that it had testimonial

evidence establishing that Barnette and McCoy had been

involved in the sale of drugs in Erie on a number of occasions

prior to March 1998, and that the drug transactions perpetrated

by the two were unique because the drugs were distributed in

small ziploc-type baggies identical to those found in the duffel
 This testimonial evidence alluded to by the prosecution is 2

not in the record. It was given as Jencks material, see 18 U.S.C.

§ 3500(b); Jencks v. United States, 353 U.S. 657 (1957), to

McCoy’s trial counsel on the day before the trial began, but was

not placed in the record. However, the material, which was also

given to McCoy’s present counsel, is referred to in general terms

in his appellate brief. Appellant’s Br. at 11-14. 

5

bag. The Government argued that collectively the Rule 404(b) 2

evidence would establish that the defendants had knowledge of

the contents of the bag, intended to distribute the drugs, and did

not act by mistake or other innocent reason. In addition, the

Government argued that the prior convictions were admissible as

predicate convictions for the firearms charges that were the

subject of Counts Four and Five.

Following a pretrial hearing, Barnette’s attorney filed a

“Jemal stipulation” seeking to prevent the introduction of his

prior felony conviction for dealing cocaine and the testimonial

evidence of his prior drug dealing activity. See United States v.

Jemal, 26 F.3d 1267 (3d Cir. 1994) (holding that district court

should ordinarily refuse to admit evidence of defendant’s prior

bad acts to show knowledge and intent when defendant has

proffered stipulation that removes issues of knowledge and

intent from jury’s consideration). 

The stipulation was signed by Barnette on October 19,

1998, and provided that:

(a) With regard to the two (2) charges of

possession with intent to distribute cocaine and

marijuana, I agree and stipulate that in the event

the jury finds as a matter of fact that I possessed

the blue duffel bag seized at the Greyhound Bus

Station in which the drugs were found, then the

jury may also find without further evidence that I

would know that the substances which were

contained in the bag were cocaine and marijuana

and further that I intended to distribute them. My
6

defense in this case is that I was not in possession

of the bag or the drugs or guns found in it.

App. at 393-94. Notably, Barnette’s Jemal stipulation did not

extend to the conspiracy charged in Count One; the burden

remained on the Government to prove that there was in fact an

agreement between Barnette and McCoy.

 In a second Notice of Intent, the Government declared its

intention, notwithstanding Barnette’s Jemal stipulation, to

introduce the Rule 404(b) prior bad acts and signature drug

packaging evidence as relevant to the agreement element of the

conspiracy charged in Count One. At a pretrial hearing held on

October 23, 1998, the District Court ruled that the prior bad acts

evidence was inadmissible because its prejudicial effect

outweighed its probative value, and because the bad acts conduct

occurred too remote in time to the one-day conspiracy charged to

have occurred on March 17, 1998. Although the Court stated it

would allow the Government to offer evidence about some prior

personal association between Barnette and McCoy, it excluded

evidence of drug dealing altogether. 

The Court also rejected the Government’s attempt to

introduce “signature” drug packaging evidence associated with

Barnette and McCoy’s alleged previous drug transactions on the

ground that the evidence was not “sufficiently unique to warrant

the inference that an individual who [was] a perpetrator in one

case is a perpetrator in another.” App. at 330. Finally, the Court

held that, given Barnette’s Jemal stipulation, the Government

would be restricted from discussing the nature of Barnette’s

prior felony at trial; it could only introduce evidence of his status

as a convicted felon for purposes of the firearms charge in Count

Four. The Court did not explicitly rule whether the nature of

McCoy’s prior felony was admissible.

At the same pretrial hearing, McCoy’s trial attorney,

Khadija Diggs, expressed her reluctance to enter into a Jemal

stipulation similar to that entered into by Barnette. McCoy’s

prior state felony conviction was for carrying a concealed

weapon, not for drug distribution, and thus carried far less
 At the October 23, 1998 hearing, Diggs stated that 3

“McCoy should not even be asked to stipulate based on my

understanding of the government’s 404(b) proffer because that

information is not appropriate as against McCoy.” App. at 281-82.

She went on to say, however, that “[t]o the extent that the court is

inclined to allow 404(b) evidence in, I believe that McCoy’s

willingness to stipulate to knowledge and intent would preclude

that 404(b) evidence,” and that she would “present that to my

client” for his consideration. App. at 282-83. Although the record

includes the written Jemal stipulation entered into by Barnette, see

App. at 392-95, it does not include a similar written stipulation

entered into by McCoy. See App. at 68 (docket sheet reflecting

stipulation of Barnette, but not McCoy); App. at 1385 (Affidavit of

Barnette’s counsel stating: “While Ms. Diggs did not assist me in

the preparation of the written Jemal stipulation signed by my client,

I recall that she adopted the stipulation on behalf of Mr. McCoy in

the late pre-trial stage of the proceedings. I also recall that we

concurred in the jury instructions regarding the Jemal stipulation.”).

According to McCoy’s present counsel, McCoy’s Jemal stipulation

was not formally entered until the point at trial when Diggs agreed

to the proposed jury instruction. 

 This stipulation states that “McCoy . . . was convicted of 4

a felony offense punishable by a term of imprisonment exceeding

one (1) year.” App. at 402. 

7

probative value relative to the drug charges in Counts One, Two

and Three. Further, the Government specified the prior bad acts

evidence closely tying Barnette to the guns and drugs found in

the bag. In contrast, the bad acts evidence allegedly implicating

McCoy was never specified before the trial, and that which was

referred to appeared relatively sparse. Nonetheless, at some

point following the October 23, 1998 hearing, Diggs entered into

a Jemal stipulation on behalf of McCoy. McCoy also entered a 3

separate written stipulation, admitting his status as a convicted

felon for purposes of the firearms charge in Count Five.4

The jury trial began on October 27, 1998, and lasted

through November 4, 1998. The Government’s evidence was

heavily weighted towards Barnette. The Government presented
8

Terry Siegworth, the Government informant who had identified

Barnette as the person who was to arrive in Erie with crack

cocaine. Siegworth also testified that he had seen Barnette on

various occasions with a .380 caliber handgun similar to the one

seized from the blue duffel bag, and that he had taken Barnette

to a location in Anderson, Indiana, where the hand gun was

stipulated to be registered. This testimony was corroborated by

Marion Smith, who testified that he had seen Barnette in

possession of the .380 caliber handgun on several instances in

the past. Belinda Peterson testified that the 9mm handgun found

in the duffel bag was similar to one she had observed Barnette

carrying in late November or early December of 1997; she also

turned over to the prosecution a holster that fit the 9mm

handgun, which she testified Barnette had stored in her

apartment.

Kendrick Grier, one of the four men who traveled on the

bus, testified for the Government that he had escaped from a

halfway house when Barnette offered to take him to Erie. When

Grier met Barnette at the home of Barnette’s aunt, he observed

the packed blue duffel bag on the floor. Barnette and Grier

picked up McQueen and McCoy and then doubled back to

Barnette’s aunt’s house to pick up the duffel bag before traveling

to the bus station. Grier testified that Barnette carried the duffel

bag into the terminal and paid for each person’s ticket. Grier

also testified that Barnette stated he had a pair of shoes inside

the duffel bag similar to the shoes that Grier was wearing on the

day at issue. This remark was particularly significant because a

pair of shoes was recovered from the blue duffel bag, in

Barnette’s size, which were the same make as the shoes Grier

was wearing.

The Government’s evidence against McCoy was

relatively weak in comparison. Several witnesses, including

Sergeant Kress, Sergeant Liebel, and Grier, testified that McCoy

carried the blue duffel bag from the bus to the location on the

street where it was seized. When questioned by police, McCoy

acted nervously and gave inconsistent responses. Furthermore,

there was evidence that McCoy and Barnette had traveled

together and that they had a prior relationship. Finally, the
9

Government rebutted McCoy’s purported innocent purpose for

his bus trip--meeting a girl named Chereka Jackson–through the

testimony of Ms. Jackson herself, who stated that she knew

McCoy but was not expecting him in Erie on March 17, 1998. 

Notably, the Government presented no evidence to demonstrate

that McCoy helped pack the blue duffel bag or knew of its

contents.

McCoy, in turn, sought to refute the Government’s case

against him by presenting evidence of a prior back and leg injury

which purportedly precluded him from lifting heavy objects. 

McCoy’s grandmother, Rayven Chinn, testified that McCoy

walked with a limp and utilized a leg brace, and opined that

McCoy would be unable to carry the blue duffel bag. She also

explained the use of his alias, stating that McCoy was called

Mark by family members and had been known to use her last

name, which was sometimes mistaken for “Chin,” or “Shinn,” or

“Shinne.” Chinn further testified that McCoy had received the

pager, which was found in his possession on the day of arrest,

from his uncle. Finally, Chinn testified that McCoy had told her

he was traveling to Erie to meet a girl. Further, McCoy

attempted to undermine the credibility of Sergeants Kress and

Liebel through the testimony of their former supervisor, Gregory

Dollinger. Dollinger stated that Kress and Liebel would do

anything necessary to secure a drug conviction, including lying

under oath. 

Given the Jemal stipulations entered by both Barnette and

McCoy, the jury was read the following instructions regarding

the substantive drug charges in Counts Two and Three:

[In] this case, the defendants have stipulated

to certain elements of each of the offenses. That

is, with regard to the crimes of possession with

intent to distribute marijuana and possession with

intent to distribute cocaine. If you should find

from all of the evidence that the government has

proven beyond a reasonable doubt that Joseph

Barnette and/or Marcresse McCoy were in

possession of the blue duffel bag seized by the law
10

enforcement officers at any time, then you may

conclude without further evidence that Joseph

Barnette and Marcresse McCoy knew that the blue

duffel bag contained cocaine and marijuana and

that they or he intended to distribute them. 

However, you may conclude this only in the event

that you find that the government has proved

beyond a reasonable doubt that Joseph Barnette

and/or Marcresse McCoy were in possession of the

blue duffel bag. The defense of each defendant in

this case is that they were not in possession of the

blue duffel bag.

App. at 1271-72 (emphasis added). 

On November 4, 1998, the jury returned a verdict of

guilty as to both Barnette and McCoy on Counts One, Two and

Three (the drug counts). Barnette was found guilty on Count

Four of the indictment, the firearm charge against him. McCoy

was found not guilty on the firearm charge at Count Five. On

March 3, 2000, McCoy was sentenced to concurrent terms of

132 months imprisonment at Counts One and Two and sixty

months imprisonment on Count Three. 

On direct appeal, this court in a non-precedential opinion,

affirmed the judgment of the District Court, holding that there

was no plain error in the above jury instruction. We stated that

the District Court merely held Barnette and McCoy “to the

bargain that they made when they entered into the Jemal

stipulation and thereby avoided the introduction of other crimes

evidence that was probative of their knowledge and intent.” App.

at 46. However, pursuant to United States v. Tobin, 155 F.3d

636 (3d Cir. 1998) (refusing to entertain ineffective assistance of

counsel claim on direct appeal), we declined to reach the merits

of McCoy’s ineffective assistance of counsel claim.

On May 28, 2002, McCoy filed a timely motion under 28

U.S.C. § 2255 for a writ of habeas corpus, alleging that his trial

counsel’s decision to enter into the Jemal stipulation constituted

ineffective assistance of counsel because “there was no
11

reasonable or tactical basis for counsel to stipulate away” the

elements of knowledge and intent on the drug charges. App. at

1316. On May 20, 2003, the District Court sua sponte joined

McCoy’s § 2255 action with the separate and independent §

2255 action of Barnette, which was filed on June 5, 2002. The

District Court granted Barnette relief on a re-sentencing issue

that was wholly independent of McCoy’s claim; McCoy’s

ineffective assistance claim was denied outright.

On May 28, 2003, McCoy filed a Notice of Appeal. On

February 13, 2004 we granted a Certificate of Appealability

(“COA”) as follows:

The foregoing request for a certificate of appealability is

granted with regard to the appellant’s claim that trial

counsel was ineffective for stipulating that if the jury

found the appellant was physically in possession of the

blue duffle bag, it could, without more, find that he both

knew that the bag contained the drugs which were the

subject of his conviction and that he intended to distribute

them.

App at 36. 

II. 

 Barnette was not re-sentenced pursuant to the District

Court’s May 20, 2003 Order until May 11, 2004, and this court

has not yet issued a decision as to whether he will be given a

COA. The Government argues that we lack jurisdiction to hear

McCoy’s appeal from the District Court’s May 20, 2003 Order

because Barnette had yet to be re-sentenced as of the date

McCoy filed his notice of appeal. See Andrews v. United States,

373 U.S. 334, 339-40 (1963) (holding that order vacating

sentence does not become final until re-sentencing). 

We reject the Government’s challenge to our jurisdiction. 

When Barnette was re-sentenced on May 11, 2004, McCoy’s

Notice of Appeal, filed on May 28, 2003, “ripened” into an

appeal from a final order. See Lazy Oil Co. v. Witco Corp., 166
12

F.3d 581, 585 (3d Cir. 1999) (reiterating our position in Cape

May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983), that “a

premature notice of appeal, filed after disposition of some of the

claims before a district court, but before entry of final judgment,

will ripen upon the court’s disposal of the remaining claims”);

see also Welch v. Cadre Capital, 923 F.2d 989, 992 (2d Cir.

1991). 

The consolidation of McCoy’s case with Barnette’s case

in the District Court does not deprive McCoy’s case of its

finality. See United States v. $8,221,87.16 in United States

Currency, 330 F.3d 141, 146 (3d Cir. 2003) (“The consolidation

of two cases does not automatically preclude the appealability of

an order in one. We have consistently rejected a bright-line rule,

preferring a case-by-case approach that examines the overlap

among the claims, the relationship of the various parties, and the

likelihood of the claims being tried together.”) Their cases on

ineffective assistance of counsel are markedly different. At the

time McCoy’s § 2255 motion was filed, and for the entire course

in which it was pled, answered, and argued, it was kept separate

and distinct from Barnette’s § 2255 motion. The two actions

were joined sua sponte by the District Court for what appears

from the record to be administrative convenience. Moreover,

this court granted a COA limited to McCoy’s claim. Thus, for

the above reasons, we hold that we have jurisdiction of this

appeal under 28 U.S.C. §§ 1291, 2253.

III. 

We thus turn to the only issue before us: whether the

District Court erred by denying an evidentiary hearing on

McCoy’s ineffective assistance of counsel claim. We review the

District Court’s decision for an abuse of discretion. Solis v.

United States, 252 F.3d 289, 293 (3d Cir. 2001). 

28 U.S.C. § 2255 provides that:

A prisoner in custody under sentence of a court

established by Act of Congress . . . may move the

court which imposed the sentence to vacate, set
 The issue of whether McCoy’s trial counsel was 5

ineffective is not before us. Such an inquiry would be subject to de

novo review. See Duncan v. Cross, 308 F.3d 308, 314 (3d Cir.

2002). 

 We have previously advised courts to consider the 6

prejudice prong before examining the performance of counsel

because this course of action is less burdensome to defense

counsel. See McAleese v. Mazurkiewicz, 1 F.3d 159, 170-71 (3d

Cir. 1993); see also Strickland, 466 U.S. at 697. 

13

aside or correct the sentence. Unless the motion

and the files and records of the case conclusively

show that the prisoner is entitled to no relief, the

court shall cause notice thereof to be served upon

the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of

fact and conclusions of law with respect thereto . .

. . 

(emphasis added).

We have held that a district court’s failure to grant an

evidentiary hearing when the files and records of the case are

inconclusive on the issue of whether movant is entitled to relief

constitutes an abuse of discretion. Solis, 252 F.3d at 294-95; see

also Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003)

(citing Fontaine v. United States, 411 U.S. 213, 215 (1973) (per

curiam)).5

A. 

Prejudice

The District Court devoted the entirety of its discussion to

the prejudice prong of United States v. Strickland, 466 U.S. 668

(1984), finding that based on the record before it, “McCoy has 6

not established a reasonable probability that, but for the alleged

errors of his trial counsel, he would have been acquitted on

Counts 1, 2, or 3 of the Superseding Indictment.” App. at 30

(emphasis added). That misstates the appropriate standard. 
14

Instead, under the statute the District Court was required to grant

an evidentiary hearing unless the record before it “conclusively

show[ed]” that McCoy was not prejudiced by Diggs’ decision to

enter the Jemal stipulation.

McCoy argues that Diggs’ decision to enter into the Jemal

stipulation relieved the Government of its burden to prove the

most difficult elements of the drug charges—knowledge and

intent. The jury instructions provided that “[i]f you should find

from all of the evidence that . . . McCoy [was] in possession of

the blue duffel bag . . . then you may conclude without further

evidence that . . . McCoy knew that the blue duffel bag

contained cocaine and marijuana and that . . . he intended to

distribute them.” App. at 1271-72. The District Court concluded

that McCoy was not prejudiced by the Jemal stipulation because

of the permissive nature of the jury charge. 

Although these instructions “allowed – but did not require

– the jury to find the elements of knowledge and intent,

consistent with the stipulation,” App. at 29, they focused the jury

on possession of the duffel bag rather than McCoy’s knowledge

and intent. We are not convinced that the permissive nature of

the jury instructions “conclusively show[s]” that McCoy was not

prejudiced. 28 U.S.C. § 2255.

As a result of the Jemal stipulation, the prosecution was

left with the relatively simple burden of proving that at some

point McCoy was in possession of the blue duffel bag. Three

witnesses, two of them police officers, testified that McCoy

carried the duffel bag from the bus to the sidewalk outside the

Erie bus station. Although McCoy attempted to rebut this

testimony through evidence of his physical ailment, which he

alleged would have prevented him from carrying the bag, and

through impeachment of the Government’s witnesses for bias,

the issue of possession vel non amounted to a determination of

credibility. Faced with overwhelming first-hand accounts of

multiple witnesses observing McCoy carrying the blue duffel

bag, and no first-hand witnesses contesting these accounts, the

jury could easily have reached its conclusion that the

Government satisfied its burden with respect to the possession
15

element. However, even if the jury believed that McCoy carried

the duffel bag from the bus to the Erie station, it would not be

dispositive of the key issue of whether McCoy was aware of the

contents of the bag.

The knowledge and intent elements presented a far

greater burden for the Government. McCoy contends, and we

agree, that the Government’s evidence against him in this regard,

was “no different in any meaningful respect than the facts the

[G]overnment had against the other two men [Grier and

McQueen]” who were not even indicted. Appellant’s Br. at 25. 

Although McCoy used a fictitious name on his bus ticket, so did

Grier and McQueen; furthermore, all four tickets were purchased

by Barnette. Grier testified that Barnette already had the blue

duffel bag packed and prepared when he met Barnette at

Barnette’s aunt’s house on the day of the arrest. There was no

evidence that McCoy assisted in packing the bag or that he made

any statements implying that he knew of its contents. Further,

Grier testified that McQueen had handled the bag during a stop

over in Cleveland. All four men had denied possession of the

bag during the police questioning. Finally, although there was

testimony that McCoy and Barnette had a prior relationship, it is

evident that both Grier and McQueen had a similar, if not more

substantial, prior relationship with Barnette. Grier had called

Barnette upon escaping from his halfway house and McQueen

had fathered a baby with Barnette’s aunt.

We need not decide on this appeal whether there exists a

reasonable probability that the Government would have been

unable to meet its burden on the elements of knowledge and

intent without the Jemal stipulation. That is an issue for the

District Court in the first instance after an evidentiary hearing

when it considers whether McCoy suffered prejudice. 

We do note that in several cases with facts even more

compelling than those in the present case, this court has held that

there was insufficient evidence to support the element of

knowledge in a drug conspiracy. In United States v. Wexler,

838 F.2d 88 (3d Cir. 1988), the Government presented evidence

that defendant had driven a lookout car in a drug delivery, had
16

gestured to and spoken to active conspirators during the

conspiracy, and was in possession of a stolen CB radio. 838

F.2d at 90-92. We stated that while there is “ample

circumstantial evidence . . . from which the jury could have

concluded that Wexler was involved in a conspiracy . . .[.]

[w]hat is missing is any evidence that Wexler knew that a

controlled substance was couched behind the doors of the Ryder

truck.” Id. at 91. Accordingly, we reversed the defendant’s

conviction on the ground that it was supported by insubstantial

evidence. Id. at 92. 

The principle enunciated in Wexler, that the Government

bears the heavy burden of proving the knowledge element of a

drug possession charge, is reflected in our subsequent decisions

reversing convictions because of insufficient evidence of

knowledge. See United States v. Cartwright, 359 F.3d 281, 291

(3d Cir. 2004) (reversing conviction where armed defendant

functioned as lookout for conspirators and had messaging device

similar to others arrested); United States v. Thomas, 114 F.3d

403, 405-06 (3d Cir. 1997) (reversing conviction where

defendant arrived at hotel room where drug package was

dropped, used key to enter, carried handgun, and contacted drug

source by phone numerous times); United States v. Brown, 3

F.3d 673, 680-84 (1993) (reversing conviction where defendant

arrived at drug “cut house” using key, referred to place as hers,

left her clothing and weapon there, and had prior drug

conviction); United States v. Salmon, 944 F.2d 1106, 1112-15

(3d Cir. 1991) (reversing conviction where defendant admitted

traveling to drug delivery site with someone to “watch [his]

back,” performed surveillance, and had surveillance equipment).

We therefore conclude that there is ample basis for the

District Court to have held an evidentiary hearing focusing on

whether Diggs’ decision to enter into the Jemal stipulation may

have prejudiced McCoy by affecting the outcome of the trial.

B. 

Counsel’s Performance

In reaching the second prong of the Strickland inquiry, we
17

must consider whether Diggs’ decision to enter into the Jemal

stipulation fell below an objective standard of reasonableness. 

Strickland, 446 U.S. at 686-94. The District Court would have

been justified in denying to hold an evidentiary hearing only if it

was indisputable that Diggs’ decision to enter into the Jemal

stipulation satisfied the Strickland standard for effectiveness of

counsel. Our review is confined to whether “the files and

records of the case conclusively show that the prisoner is entitled

to no relief . . . .” 28 U.S.C. § 2255 (emphasis added). If

McCoy’s petition alleges any facts warranting relief under §

2255 that are not clearly resolved by the record, the District

Court was obliged to follow the statutory mandate to hold an

evidentiary hearing. See Engelen v. United States, 68 F.3d 238,

240 (8th Cir. 1995) (stating that § 2255 motion “can be

dismissed without a hearing [only] if (1) the petitioner’s

allegations, accepted as true, would not entitle the petitioner to

relief, or (2) the allegations cannot be accepted as true because

they are contradicted by the record, inherently incredible, or

conclusions rather than statements of fact”); see also Fontaine,

411 U.S. at 214-15 (requiring evidentiary hearing for movant’s §

2255 claim asserting that his plea of guilty was induced by, inter

alia, his poor physical condition and heroin addiction

notwithstanding appropriate colloquy pursuant to Fed. R. Crim.

P. 11) . It has been recognized that “[t]he standard governing . . .

requests [for evidentiary hearings] establishes a reasonably low

threshold for habeas petitioners to meet.” Phillips v. Woodford,

267 F.3d 966, 973 (9th Cir. 2001).

In the present case, although it appears that Barnette

benefitted from the Jemal stipulation because his prior

conviction for drug distribution was kept from the jury, it is

difficult from the record to discern the strategic advantage to

McCoy from the same stipulation. During the October 23, 1998

pretrial hearing (before McCoy’s counsel adopted the Jemal

stipulation), the District Court ruled that the Government’s Rule

404(b) evidence of McCoy’s prior drug selling relationship with

Barnette would be inadmissible. Moreover, McCoy’s prior

felony conviction was for possession of a concealed weapon, not

for drug distribution (as was the case for Barnette); thus, it

appears that the probative value of this conviction to the
 The Government argues that the Jemal stipulation 7

benefitted McCoy because Barnette and McCoy were codefendants and “[a] stipulation by one of them, but not the other .

. . would probably have struck the jury as very odd.” Appellee’s

Br. at 43. We find this argument unconvincing. The evidence at

trial was very strong against Barnette, and relatively weak against

McCoy. It is not apparent that it was reasonable for McCoy to

forfeit what was arguably his best line of defense for the sole

reason that he and Barnette could present consistent defenses.

18

conspiracy and drug charges at Counts One, Two and Three was

minimal. Finally, McCoy had entered into a separate stipulation

stating that he had committed a predicate felony for the 18

U.S.C. § 922(g)(1) firearms charge. It is likely that McCoy

could nonetheless have argued lack of knowledge or intent with

regard to the contents of the duffel bag. Cf. Old Chief v. United 7

States, 519 U.S. 172 (1997) (holding that district court abuses its

discretion under Fed. R. Evid. 403 when it refuses to permit

defendant, charged under 18 U.S.C. §922(g)(1), to stipulate to

his/her status as a convicted felon when nature of the prior

conviction is unduly prejudicial and where the purpose of the

evidence is solely to prove the element of prior conviction). 

We agree with the Government that courts have been

highly deferential to counsel’s strategic decisions, see, e.g.,

Strickland, 466 U.S. at 690 (stating that “strategic choices made

after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable”); United States v. Otero,

848 F.2d 835, 838 (7th Cir. 1988), but merely labeling a decision

as “strategic” will not remove it from an inquiry of

reasonableness. See generally Davidson v. United States, 951 F.

Supp. 555, 558 (W.D. Pa. 1996); see also Gov’t of the V.I. v.

Weatherwax, 77 F.3d 1425, 1431-32 (3d Cir. 1996). 

The difficulty facing us is that because of the District

Court’s failure to hold an evidentiary hearing at which trial

counsel could have been questioned, we cannot ascertain the

reasons or strategy underlying Diggs’ acceptance of the Jemal

stipulation. Without the opportunity to evaluate the rationale
Because the COA is limited to the claim of ineffectiveness 8

in entering the Jemal stipulation, we do not consider any possible

issue as to whether the stipulation was entered into with McCoy’s

knowledge and voluntary consent.

19

given by trial counsel, the issue of possible ineffectiveness

cannot be conclusively determined. An evidentiary hearing is 8

therefore appropriate. Cf. Everett v. Beard, 290 F.3d 500, 514-

15 (3d Cir. 2002) (finding ineffectiveness of counsel for failure

to object on due process grounds to jury instructions).

At that time, the District Court may also consider whether

Diggs’ decision to enter into the Jemal stipulation was unduly

influenced by Barnette’s counsel. In its response to McCoy’s §

2255 petition, the Government appended an affidavit by

Barnette’s trial counsel asserting that Diggs was initially

reluctant to enter into the Jemal stipulation but that he had

persuaded her to do so in order to “avoid[] inconsistent

defenses.” App. at 1385. He asserted that those benefits

“remained even after the Court later deemed the 404(b) bad acts

evidence to be inadmissible.” App. at 1385. The affidavit,

however, provides no rationale for this statement nor does it

specify which prior bad acts evidence was successfully

stipulated away as a result of entering into the Jemal stipulation. 

Also appended to the Government’s response was a

document consisting of handwritten notes taken from Diggs’

trial file which contain brief phrases such as “rule 14 improper

joinder”; “404b not to be used as evidence”; “re-evaluate the

Jemal stipulation”; “what are the consequences”; “might have to

sever”; and “exclude or stipulate.” App. at 1395. Most notably,

this document also contains the phrase “prosecutorial

misconduct causing tactical decision.” App. at 1395. At a

hearing, it may be useful to question trial counsel whether the

latter refers to the Government’s continual representation during

pretrial hearings that it had evidence of McCoy’s prior drug

dealing relationship with Barnette, when the actual existence of

such evidence was never fully disclosed. 
20

IV.

For the above reasons, we will reverse the judgment of

the District Court denying McCoy’s motion under 28 U.S.C. §

2255 and remand the case to it with instructions to hold an

evidentiary hearing.

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