United States Court of Appeals

For the Eighth Circuit

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No. 13-1264

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Tonya Johnson Hyles

lllllllllllllllllllllPetitioner - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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 Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

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 Submitted: April 14, 2014

 Filed: June 6, 2014

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Before RILEY, Chief Judge, MELLOY and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

A jury convicted Tonya Johnson Hyles (“Hyles”) of conspiracy to use interstate

facilities to commit murder for hire in violation of 18 U.S.C. § 1958(a), aiding and

abetting murder for hire in violation of 18 U.S.C. §§ 2 and 1958, possessing a firearm

in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(i), and

conspiracy to deliver a firearm to a felon in violation of 18 U.S.C. §§ 922(g)(1) and
371. She was sentenced to life imprisonment plus five years, and three years of

supervised release. Hyles moved under 28 U.S.C. § 2255 to vacate her sentence,

alleging ineffective assistance of counsel. The district court denied her motion

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without an evidentiary hearing. She appeals. Having jurisdiction under 28 U.S.C. §

1291, this court affirms.

I.

The facts of this case are set forth in United States v. Hyles, 521 F.3d 946 (8th

Cir. 2008), United States v. Cannon, 475 F.3d 1013 (8thCir. 2007), and United States

v. Tyrese Hyles, 479 F.3d 958 (8th Cir. 2007). Reiterated here are the facts relevant

to Hyles’s current appeal.

On August 10, 2000, inCaruthersville, Missouri, CoyL. Smith testified against

Tyrese D. Hyles (“Tyrese”), Hyles’s husband (then boyfriend). After the preliminary

hearing in the state drug case, Tyrese devised a plan to murder Smith. He asked

David L. Carter, his cellmate at the county jail, to kill Smith. Tyrese promised to

have Hyles bail Carter out of jail, and to give him a 1984 Pontiac in exchange for the

murder. Carter agreed. That same day, Hyles bailed Carter out of jail, listing the car

as collateral and telling the bondsman she had just sold the car to him.

That afternoon, Hyles asked Samuel Anderson to borrow a gun. Anderson

agreed to give her the gun and said he would bring it to her house. According to

Anderson, Hyles said “that’s fucked up that Coy had testified against Tyrese” and

“that she’s going to get somebody to take care of his ass.” Five to ten minutes later,

Anderson brought a Beretta stainless steel gun to Hyles’s residence. He handed her

the gun and told her to place it in the cabinet. Carter, who was hiding in Hyles’s

The Honorable Henry Edward Autrey, United States District Judge for the

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Eastern District of Missouri. 

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house when the gun was delivered, retrieved it from the cabinet and left. Carter never

killed Smith. Instead, he returned the gun to Anderson a couple of days later.

About the same time, Tyrese and Hyles were also arranging to have Amesheo

D. Cannon kill Smith. Phone records, fromthe evening of August 10, showed several

phone callsfrom Tyrese’s cell at the county jail to Hyles’s residence—including calls

at 7:50 and 8:34. There were also four calls from Cannon’s mother’s house in

Memphis, to Hyles’s house in Caruthersville—at 8:11, 8:23, 8:39, and 8:43. The last

call lasted 51 minutes, overlapping with the second call from Tyrese’s jail cell.

April Leatherwood, Cannon’s girlfriend, testified that, on August 14, Cannon

called her from Memphis, saying that Hyles was driving him to Caruthersville from

Memphis. Hendrietta Nichols, also Cannon’s girlfriend, testified that she and Hyles

drove to Memphis to pick him up and he drove them all back to Caruthersville. A

couple of days later, Anderson gave Cannon the same gun he had originally given

Hyles. He testified he saw Cannon get out of the passenger side of Hyles’s Pontiac,

but could not see the driver. According to Anderson, Cannon stated that he was going

to “take care of that for Tyrese.”

On August 20, Hyles and Cannon drove by Smith’s house. Hyles was driving

the Pontiac, with Cannon in the passenger seat. Hyles and Cannon went to the county

jail to talk to Tyrese. They were seen yelling up to Tyrese’s cell window from outside

the jail. The next morning, on August 21, the police found Smith shot to death in

bed.

On June 11, 2001, Hyles signed a proffer letter with the government. It

contained an agreement to “engage in negotiations involving specific concessions”

by the government in exchange for further cooperation if the government believed the

information in the proffer was “truthful, candid and meritorious.” Pursuant to the

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proffer letter, Hyles testified before a grand jury on October 18, 2001. The

government later determined Hyles was untruthful and began to prosecute her.

Hyles maintains that her attorney advised her that she had entered into a

non-prosecution agreement after her proffer letter but before her grand jury testimony. 

No such agreement ever existed. Hyles, 521 F.3d at 953.

II.

Hyles alleges ineffective assistance of counsel when her trial counsel (1)

advised her to enter into a proffer agreement to provide statementsto the government

and grand jury and (2) told her she had entered into a non-prosecution agreement with

the government. The district court denied Hyles’s § 2255 motion without an

evidentiary hearing. Hyles argues on appeal that the district court erred in denying

her motion. This court reviews “the ineffective assistance issue de novo, but findings

of underlying predicate facts are reviewed for clear error.” Anderson v. United

States, 393 F.3d 749, 753 (8th Cir. 2005). 

To show ineffective assistance of counsel, a movant “must demonstrate:(1) his

attorney’s performance was deficient and fell outside the range of reasonable

professional assistance; and (2) he suffered prejudice by showing that, absent

counsel’s ineffective assistance, there is a reasonable probability that the result of the

proceeding would have been different.” United States v. Taylor, 258 F.3d 815, 818

(8th Cir. 2001), citing Strickland v. Washington, 466 U.S. 668 (1984). 

Failure to establish either prong of Strickland “is fatal to a claim of ineffective

assistance.” Morelos v. United States, 709 F.3d 1246, 1250 (8th Cir. 2013). Because

Hyles cannot show prejudice, this court declines to address whether her attorney’s

performance was deficient. 

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The only prejudice Hyles identifies is admission of her grand jury testimony

at trial. Hyles insists she would not have testified before the grand jury if her counsel

had not told her about the alleged non-prosecution agreement. Hyles’s grand jury

testimony admitted at trial was: (1) she was present in court for Smith’s testimony at

the preliminary hearing; (2) Tyrese asked her via telephone to bond Carter out of jail;

(3) she signed the bond documents to get Carter out of jail; (4) she made

arrangements to have Anderson bring the gun to her house; (5) she made

arrangementsto have Carter pick up the gun; and (6) Anderson got the gun back from

Carter.

This grand jury testimony was cumulative of other trial evidence. There is no

“reasonable probability that the result of the proceeding would have been different”

had Hyles not testified before the grand jury. See Taylor, 258 F.3d at 818. Cf. Smith

v. Firestone Tire & Rubber Co., 755 F.2d 129, 132 (8th Cir. 1985) (“Improper

admission of evidence which is cumulative of matters shown by admissible evidence

is harmless error.”). Carter testified that (1) he and Hyles were both present at

Tyrese’s preliminary hearing, and (2) he picked up the gun from Hyles’s house. 

Carter’s bond documents, showing Hyles’s signature, were admitted at trial, and the

bail bondsman testified that Hyles bonded Carter out of jail. Anderson testified that

(1) Hyles asked him for a gun, (2) he gave it to her at the house, and (3) he later

retrieved the gun from Carter.

Hyles also testified she did not initially know why Tyrese asked her to bond

Carter out of jail. Since this testimony was favorable to Hyles, it cannot constitute

prejudice under Strickland. Hyles testified that Tyrese eventually told her the reason

for bonding Carter out, but other trial testimony supported Hyles’s knowledge of

Tyrese’s motivation. For example, Anderson testified that Hyles asked for a gun

because she was “going to get somebody to take care of” Smith.

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Hyles acknowledges that “the testimony of Anderson and Carter was

corroborated by [her] own admissions,” but complains this undercut her ability to

attack their credibility. As this court noted, there was sufficient evidence of her guilt

even without their testimony: 

[T]he Government . . . showed [Hyles] knowingly joined a conspiracy

with Cannon to murder Smith. The Government presented evidence that

several phone calls were placed from Cannon’s residence to Hyles’s

around the same time Hyles and Tyrese were conspiring with Carter to

kill Smith, that Hyles drove to Memphis to pick up Cannon and bring

himto Caruthersville a few days before the murder, and that Hyles drove

Cannon by Smith’s house the evening before the murder.

Hyles, 521 F.3d at 955. 

In light of the cumulative and immaterial nature of her grand jury testimony,

Hyles cannot meet the Strickland prejudice prong. 

III.

Hyles argues that her counsel was ineffective in advising her not to accept the

government’s plea offer. The district court denied Hyles’s § 2255 motion without an

evidentiary hearing. She appeals, claiming the district court erred in denying her

motion and abused its discretion by not holding a hearing. 

This court reviews “the ineffective assistance issue de novo, but findings of

underlying predicate facts are reviewed for clear error.” Anderson, 393 F.3d at 753. 

A district court’s denial of an evidentiary hearing on a § 2255 motion may be

reversed only for an abuse of discretion. Winters v. United States, 716 F.3d 1098,

1103 (8th Cir. 2013). A § 2255 motion may be dismissed without a hearing if (1) the

criminal defendant’s allegations, accepted as true, would not entitle him or her to

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relief; or (2) the allegations cannot be accepted as true because they are contradicted

by the record, are inherently incredible, or are conclusions rather than statements of

fact. Id. at 1103.

Assuming her attorney advised her to reject the plea, Hyles cannot prove that 2

her counsel’s performance was deficient. This court’s scrutiny of counsel’s

performance is “highly deferential,” presuming that counsel’s conduct “falls within

the wide range of reasonable professional assistance.” Osborne v. Purkett, 411 F.3d

911, 918 (8th Cir. 2005). This court does not “second-guess strategic decisions or

exploit the benefits of hindsight.” Id. As evident in her direct appeal, Hyles’s claims

attacking the sufficiency of the evidence were colorable. Hyles, 521 F.3d at 954-56. 

Any advice that she hold the government to its burden at trial is not constitutionally

unreasonable. 

Hyles also cannot meet Strickland’s second prong. She maintained her

innocence at trial, at sentencing, and on appeal. Nothing in the record indicates she

wanted to accept the plea offer and would have acknowledged her guilt even if

properly advised about the risks of trial. See Sanders v. United States, 341 F.3d 720,

723 (8th Cir. 2003) (“A defendant who maintains his innocence at all the stages of his

criminal prosecution and shows no indication that he would be willing to admit his

guilt undermines his later § 2255 claim that he would have pleaded guilty if only he

had received better advice fromhis lawyer.”); United States v. Stevens, 149 F.3d 747,

748 (8th Cir. 1998) (“Even if counsel’s performance were somehow inadequate,

Stevens failed to establish that there was any reasonable probability that he would

have acknowledged his guilt had he been properly advised about the risks of trial.”).

Hyles’s assertion that counsel encouraged her to reject the plea is contradicted

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by the record. Her trial attorney submitted an affidavit swearing he told Hyles her

chances were “exceedingly slim” and urging her to accept the plea.

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* * * * * * *

The judgment is affirmed.

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