United States Court of Appeals

For the Eighth Circuit

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No. 13-3320

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Ronald Weaver

lllllllllllllllllllllPetitioner - Appellee

v.

United States of America

lllllllllllllllllllllRespondent - Appellant

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No. 13-3321

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Ronald Weaver

lllllllllllllllllllllPetitioner - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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Appeals from United States District Court 

for the Northern District of Iowa - Sioux City

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Submitted: April 13, 2015

 Filed: July 16, 2015

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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

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RILEY, Chief Judge.

A jury convicted Ronald Weaver of conspiracy to manufacture and distribute

and possession with intent to distribute cocaine base in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A) and 846. After we denied Weaver relief on direct appeal, see

United States v. Weaver, 554 F.3d 718, 719 (8th Cir. 2009), Weaver moved to vacate

his sentence under 28 U.S.C. § 2255(a). Concluding Weaver’s sentencing counsel

wasineffective by failing to move for a new trial before sentencing, the district court

vacated Weaver’s conviction and ordered a new trial. The government appeals, and

Weaver cross-appeals the district court’s denial of two claims of ineffective

assistance of trial counsel. We affirm the district court’s denial of Weaver’s motion

on the two alternative grounds, but we reverse the district court’s order vacating

Weaver’s conviction. 

1

I. BACKGROUND

On October 24, 2006, in a second superseding indictment, a federal grand jury

charged Weaver and co-defendants Carvell England and Jamale Key, among others,

with crack-cocaine conspiracy and possession crimes. England pled guilty on April

17, 2007, and Key pled guilty on April 19, 2007. Of six co-defendants, only Weaver

proceeded to trial beginning April 24, 2007, and a jury found him guilty on both

charged counts. Weaver filed a motion for a new trial, which the district court

We have appellate jurisdiction under 28 U.S.C. § 1291. See also 28 U.S.C. 1

§ 2253(a).

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denied. Weaver’s trial counsel, Chad Primmer, then moved to withdraw as attorney. 

The district court granted the motion and appointed Stuart Dornan to represent

Weaver for sentencing.

The district court convenedWeaver’s sentencing hearing on June 2, 2008, after

co-defendants England and Key already had been sentenced. Although neither

England, Weaver’s “godbrother,” nor Key, Weaver’s cousin, testified at Weaver’s

jury trial, both testified on Weaver’s behalf at his sentencing hearing. England

testified, in effect, that Weaver had nothing to do with the crimes charged against

him. Key similarly testified Weaver was not involved in the charged conspiracy and

distribution conduct. The district court sentenced Weaver to 300 months

imprisonment on each of the two counts, to run concurrently. 

After his unsuccessful direct appeal, Weaver moved to vacate his sentence

under 28 U.S.C. § 2255(a), claiming, among other things, ineffective assistance of

trial counsel. The district court heard argument on the motion on April 18-19, 2012,

and then ordered supplemental briefing to address “whether [Weaver] is entitled to

relief on a claim of ineffective assistance of counsel in relation to Attorney Stuart

Dornan’s potential failure to file a motion for a new trial at or prior to sentencing

based on his knowledge that Carvell England and Jamale Key were then willing to

testify.” The district court heard further argument on August 6, 2012. 

The district court denied Weaver’s § 2255 claims as to trial counsel Primmer,

but found sentencing counsel “Dornan provided ineffective assistance of counsel by

failing to file a [second] Motion for a New Trial,” which the district court stated it

“would have granted” to allow Weaver to call England and Key as exculpating

witnesses. The district court decided Weaver was “now entitled to a new trial” and

entered judgment in Weaver’s favor, vacating Weaver’s conviction. The government

appealed, and Weaver cross-appealed. The district court granted a certificate of

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appealability to Weaver on his claims of ineffective assistance of trial counsel,

2

among other things. 

II. DISCUSSION

We evaluate a claim of ineffective assistance of both trial counsel and

sentencing counsel by following the standard articulated in Strickland v. Washington,

466 U.S. 668, 671, 687 (1984). See, e.g., Theus v. United States, 611 F.3d 441, 446

(8th Cir. 2010). To succeed, Weaver “must show that counsel’s performance was

deficient” and “that the deficient performance prejudiced the defense.” Strickland,

466 U.S. at 687. “In any case presenting an ineffectiveness claim, the performance

inquiry must be whether counsel’s assistance was reasonable considering all the

circumstances.” Id. at 688. We “indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Id. at 689. And

“strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable.” Id. at 690. “We review [Weaver’s]

ineffective assistance claim[s] de novo and review the district court’s factual findings

for clear error.” Scott v. United States, 473 F.3d 1262, 1263 (8th Cir. 2007).

A. Trial Counsel

1. England and Key

Weaver alleges the district court erred by not finding trial counsel Primmer

ineffective for “fail[ing] to determine whether Mr. Key and Mr. England were willing

to testify” at trial “on Mr. Weaver’s behalf.” Weaver submitted affidavits signed in

2010 by England and Key, each of whom stated he willingly would have testified at

trial, but Primmer had not contacted him or his lawyer about the matter. 

The government did not need a certificate of appealability to bring this appeal. 

2

See Fed. R. App. P. 22(b)(3).

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At the § 2255 hearing, Primmer testified that before trial, Weaver told Primmer

“the codefendants in this matter would like to testify on his behalf.” So on April 20,

2007, after England and Key had pled guilty and before Weaver’s trial, Primmer

contacted Matthew Metzgar, England’s attorney, and Joseph Flannery, Key’s

attorney, by email—because “[e]thically if somebody’s represented by a lawyer,

[Primmer had] to first speak to their lawyer.” In the email, with subject heading

“Ronald Weaver,” Primmer stated, 

I was notified by my client yesterday afternoon that some or all of your

clients wish to testify on his behalf at his trial starting next week. I am

not going to speak with any of your clients without permission. Could

each of you comment on whether or not there is any accuracy to this or

if I have permission to contact your client.

That same day, Primmer filed an “Application for Maintenance of Prisoners” with the

district court, stating Weaver told Primmer that England and Key wanted to testify on

Weaver’s behalf and requesting England and Key be available to testify at trial on

April 24, 2007. The district court ordered that both potential witnesses be available

during the trial. 

Primmer testified that his “recollection is that at least one lawyer called [him]

back and was adamant that his client wanted nothing to do with it and that [the

lawyer] didn’t want to expose his client to obstruction of justice or perjury or other

further harm than they already were facing,” and that none of the lawyers “indicated

that their client was willing to testify.” Specifically, Primmer testified he met with

Metzgar at the courthouse during Weaver’s trial, and Metzgar told Primmer that

England “wasn’t willing to testify.” Similarly, Primmer stated Flannery informed

Primmer in a phone call that Key would not testify. In both instances, Primmer stated

he could “rely on [Metzgar’s and Flannery’s] professionalrepresentation[s] to [him],”

and Primmer did not believe Metzgar and Flannery were lying because they were

“honest people.”

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Primmer further testified the lawyers’ responses to his email were

commensurate with his experience as a defense lawyer, because “if you object to

particular relevant conduct in your presentence report or if you testify in a manner

that the court deems isn’t correct, you could lose acceptance of responsibility [credit

at sentencing]. You could face obstruction of justice. Or you could face another

separate indictment for . . . perjury.” Primmer concluded that for the testifying

witness, “a bad situation gets very bad. . . . [A]lmost nothing good can come of it.” 

Nevertheless, Primmer stated “if either [England or Key] were willing to come into

court and testify for Mr. Weaver, [Primmer] absolutely would have called them.” 

Metzgar testified he advised England not to testify at Weaver’s trial, and after

that discussion “[England] wasn’t going to speak to Mr. Primmer.” Metzgar testified

England did not tell him England wanted to testify on Weaver’s behalf. Flannery

explained he advised Key not to testify for any proceeding, in part because of

possible questions about an unrelated murder case. Flannery stated that he and Key

“both agreed that he should not talk to anyone” because things “could have gotten a

lot worse for [Key].” Flannery stated he communicated thisto Primmer by telephone. 

Primmer took these refusals to mean that England and Key would invoke their Fifth

Amendment right against self-incrimination should they be called to the witness

stand. 

As the district court observed, Primmer did exactlywhat Weaver requested him

to do—he investigated the possibility of England and Key testifying at trial. Primmer

filed the application with the court to ensure England and Key, both prisoners, would

be available to testify. Primmer emailed England’s and Key’s attorneys to inquire

whether they would testify. Neither attorney responded positively to Primmer’s

email.

But Weaver suggests Primmer should have subpoenaed England and Key and

then interviewed them outside the presence of the jury pursuant to Federal Rule of

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Evidence 104(a), (c) asto whether each intended to invoke his Fifth Amendment right

against self-incrimination. See United States v. Campbell, 410 F.3d 456, 463 (8th 3

Cir. 2005) (describing such a procedure). This would have required Primmer to doubt

Metzgar’s and Flannery’s representations that their clients refused to testify, which

Primmer himself believed was the reasonable course to take, because “nothing good

[could] come of it” for England or Key. Weaver fails to rebut the “strong

presumption,” Strickland, 466 U.S. at 689, that Primmer acted reasonably when he

investigated England’s and Key’s availability, was rebuffed by each co-defendant’s

attorney, and in fact believed both England and Key had refused to testify for Weaver. 

Primmer made “strategic choices” based on “reasonable professional judgments

support[ing] the limitations on investigation” and fulfilled his “duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Id. at 690-91. 

2. 18 U.S.C. § 3161(c)(2) Writing Requirement

Weaver initially appeared and was arraigned on a second superseding

indictment on April 13, 2007. At that time, trial for Weaver’s co-defendants, who

Weaver cites United States v. Lofton, 333 F.3d 874, 875-76 (8th Cir. 2003), 3

in support of his argument, where we noted defendant Lofton “could have called [a

co-defendant] as a defense witness at trial” when, after trial, the co-defendant claimed

he would have testified favorably in Lofton’s behalf. Lofton is inapposite in this

context, because in Lofton, there was no indication that at the time of trial the codefendant had stated through counsel he would not testify, whereas here, Primmer

had every reason to believe from their legal counsel that England and Key had

refused to testify. See id. Weaver also contends “Primmer apparently did not know

that he could determine the invocation of the 5 Amendment outside the presence of th

the jury.” This contention is refuted by Primmer’s testimony that he “would have

done that” “if [he] thought [either] lawyer was lying to [him]” and while such a

procedure is possible, he “also [could] rely on [Metzgar’s and Flannery’s]

professional representation[s] to [him].”

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eventually pled guilty, was set to begin ten days later on April 23, 2007. At the

4

arraignment, trial counsel Primmer assured the magistrate judge that Weaver wanted

to go ahead with the April 23 trial date. The magistrate judge asked Primmer if he

had “been involved in this case already,” to which Primmer replied, 

I’ve been representing Mr. Weaver for some time on matters both

relating to this as well as his pending indictment in the Southern District

of Iowa in Des Moines. This case was previously a state case. I have

had accessthrough Mr. Weaver of all copies ofstate discovery materials

and state depositions [and] the U.S. Attorney’s Office in Sioux City and

[the assistant U.S. Attorney] have previously made available all

discovery materials in this particular case.

The following colloquy ensued:

THE COURT: Mr. Weaver, . . . do you understand that you

have the right to insist on more time to get

ready for trial if you want?

THE DEFENDANT: Yes, sir.

THE COURT: And is it correct that you wish to go ahead on

the April 23rd date as scheduled?

THE DEFENDANT: Yes, sir.

Weaver now alleges trial counsel Primmer rendered ineffective assistance by

“fail[ing] to object to Mr. Weaver’s oral waiver [of] his right to have [thirty] days to

prepare for trial.” See 18 U.S.C. § 3161(c)(2) (“Unless the defendant consents in

writing to the contrary, the trial shall not commence less than thirty days from the

date on which the defendant first appears through counsel.” (emphasis added)). 

Weaver’s oral waiver did not comport with the plain requirements of § 3161(c)(2). 

The trial date was soon changed to April 24, 2007. 4

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Assuming without deciding Primmer’s failure to object, despite Weaver’s explicit

oral waiver, amounted to deficient performance under Strickland, we look to see if

Weaver was prejudiced by any such deficiency. See Strickland, 466 U.S. at 687. 

Weaver alleges prejudice due to the short time span between arraignment and

trial, contending that additional preparation time would have allowed Primmer “to

research and identify the proper procedure for determining whether Mr. Key and Mr.

England would have testified on Mr. Weaver’s behalf. If [Primmer] had done so, . . .

Mr. Weaver would have been acquitted.” We note Key was sentenced in September

2007 and England was sentenced in November 2007, so a continuance extending the

trial date to thirty days past Weaver’s initial appearance in April 2007 still would

have resulted in a trial occurring before each co-defendant’s sentencing hearing, with

the same risks to each co-defendant if either decided to testify. In addition, as the

district court noted, “it is clear from the record that Mr. Primmer was more familiar

with the file than the U.S. attorney (because he had previously [represented] Mr.

Weaver) and decided to leverage his superior knowledge of the case by quickly

proceeding to trial.”

As previously described, Primmer followed a reasonable procedure for

investigating England’s and Key’s willingnessto testify. Weaver has not established

he was prejudiced by the lack of a written waiver of the thirty-day § 3161(c)(2)

requirement, because Weaver has not shown any additional time allotted for trial

preparation would have changed Primmer’s reasonable trial strategy or otherwise

affected his effectiveness. Because Weaver has not “met the burden of showing that

the decision reached would reasonably likely have been different absent the error[],” 

Strickland, 466 U.S. at 696, he has not proven a claim of ineffective assistance due

to lack of compliance with § 3161(c)(2).

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B. Sentencing Counsel

Weaver successfully argued in the district court thatsentencing counsel Dornan

failed to provide effective assistance when he did not file a second motion for a new

trial. The district court faulted Dornan for not inquiring into whether England and

Key would have offered exculpating testimony at Weaver’s trial when Dornan knew

they were willing to do so at Weaver’s sentencing hearing. Weaver contends

England’s and Key’s exculpating testimony would have amounted to “newly

discovered evidence” under Federal Rule of Criminal Procedure 33(b)(1) (allowing

a “motion for a new trial grounded on newly discovered evidence”).

“When newly discovered evidence is the ground for a § 2255 motion, the

district court should apply the same substantive test which governs a motion for a

new trial under Fed. R. Crim. P. 33 premised upon the same ground.” Lindhorst v.

United States, 658 F.2d 598, 602 (8th Cir. 1981) (quotation omitted); see Fed. R.

Crim. P. 33(a) (“Upon the defendant’s motion, the court may vacate any judgment

and grant a new trial if the interest of justice so requires.”). “[W]here an affidavit is

not available until after trial, if the factual basis for the testimony in the affidavit

existed before trial, then it is not newly discovered evidence.” United States v. Bell,

761 F.3d 900, 911 (8th Cir. 2014). And “‘when a defendant who has chosen not to

testify subsequently comesforward to offer testimony exculpating a codefendant, the

evidence is not newly discovered,’” Lofton, 333 F.3d at 875-76 (alteration omitted)

(quoting United States v. Offutt, 736 F.2d 1199, 1202 (8th Cir. 1984) (per curiam)),

“especially where the moving party knows about the involvement of that witness,” 

Bell, 761 F.3d at 911.

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In its order vacating Weaver’s sentence, the district court stated England’s and

Key’s “attorneys told them not to testify before their sentencing.” The district court

5

credited Metzgar’s and Flannery’s testimony as follows:

Attorneys Joe Flannery and Matt Metzgar, who represented Mr. Key and

Mr. England, respectively, also testified at the evidentiary hearing. Mr.

Metzgar stated that he communicated Mr. Primmer’s request to his client

but that he advised his client not to testify on Mr. Weaver’s behalf. Mr.

Flannery stated that he told Mr. Primmer that Mr. Key would not testify

on Mr. Weaver’s behalf. (The Court notes that Mr. Key and Mr.

England were advised not to testify for valid, strategic reasons in their

own cases, related to possible incrimination and sentencing

enhancements).

(Emphasis added). The district court further stated, “[A]ccording to Mr. Key and Mr.

England, theywere always willing to testify for Mr. Weaver, although their respective

counsel advised against it.” The district court explained, 

Based on the evidence currently before the Court, itseems clear Mr. Key

and Mr. England would have told Mr. Dornan that they would have been

happy to testify at trial, even though their attorneys opposed such

testimony. The fact that co-conspirators were willing to testify on Mr.

Weaver’s behalf at trial, but did not, should have formed the basis for a

Motion for a New Trial. 

The record evidence does not support the district court’s factual finding. 

England and Key testified at Weaver’s sentencing hearing in 2008, submitted

affidavitssworn in 2010, and testified at Weaver’s § 2255 hearings in April 2012 and

August 2012. Nowhere did either state he would have been willing to testify against

the advice of counsel. Nothing in England’s or Key’s affidavits or testimony

At the same time, the district court correctly pointed out “there is no evidence 5

that Mr. Key was ever told by Mr. Flannery that Mr. Weaver wanted him to testify at

trial.”

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indicates either knew what that advice of counsel would have been because neither

admits to having spoken with his attorney about the matter. 

For example, in England’s 2010 affidavit, he declares, “[M]y lawyer never even

had a conversation with me about [Weaver’s] lawyer wanting me to testify in

[Weaver’s] behalf, because if he would have I would have testified in his behalf

without any hesitation.” Similarly, in Key’s 2010 affidavit, he proclaims, “[M]y

lawyer and I have never been approached with this matter, nor have we ever had such

a conversation with [M]r. Weaver’s lawyer pertaining to this matter, because if we

would have, I would have gladly . . . testified in [M]r. Weaver’s behalf.” Thus both

England and Key directly contradict the district court’s factual finding that their

attorneys told them, at the time of trial in April 2007, about the possible repercussions

of testifying and both were still willing to testify and risk greater punishment. So any

finding based on England’s and Key’s post-sentencing affidavits and testimony as to

what either would have done in April 2007, before sentencing, is conjecture shaped

by “the distorting effects of hindsight.” Strickland, 466 U.S. at 689. 

The district court’s factual finding that “Mr. Key and Mr. England would have

told Mr. Dornan that they would have been happy to testify at trial, even though their

attorneys opposed such testimony” may well be true—they may well have told

Dornan exactly that, after the potential harmto their sentencing hearings was mooted. 

But we cannot conclude, based on the record before us, that either would have

advised his own attorney to tell Primmer the same thing in April 2007, before their

sentencings. 

We also note neither England nor Key credibly claims he told his counsel

before trial in April 2007 he wanted to testify on Weaver’s behalf, as one would

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expect from the urgency of their affidavits. Rather, each says he did not discuss the

6

matter with counsel. This is particularly surprising for England, who knew Weaver

wanted himto testify at trial—Weaver’s mother relayedWeaver’s request to England. 

England claims he wanted to testify for Weaver “from the beginning, from the start

even when the case was state” but does not explain why he never mentioned this to

his lawyer. 

As Dornan succinctly put it, he did not file a motion for a new trial because

England’s and Key’s new exculpatory testimony was, at the time of the sentencing

hearing in 2008, “newly available,” rather than “newly discovered.” See Bell, 761

F.3d at 911 (“‘Rule 33 does not authorize district courts to grant new trials on the

basis ofsuch evidence since it is not newly discovered, but merely newly available.’”

(quoting United States v. Owen, 500 F.3d 83, 89 (2d Cir. 2007))). “[W]here, as in

this case, a defendant knew or should have known, that his codefendant could offer

material testimony as to the defendant’s role in the charged crime, the defendant

cannot claim that he ‘discovered’ that evidence only after trial.” Owen, 500 F.3d at

91; see id. at 91-92 n.5 (stating whether testimony was deemed “newly discovered”

was not dependent upon the attorney’s diligence at trial to procure the testimony of

a co-defendant exercising his right to avoid self-incrimination); see also UnitedStates

v. Moore, 221 F.3d 1056, 1058 (8thCir. 2000) (“Although [the defendant] argues that

[his co-defendant] was an unavailable witness [at the time of trial] since he was

awaiting sentencing for his role in the drug conspiracy, this court has held that ‘when

a defendant who has chosen not to testify subsequently comes forward to offer

Key testified at Weaver’s April § 2255 hearing that Primmer had contacted 6

Flannery, but Flannery “didn’t inform” Key and Key didn’t know Weaver wanted

Key to testify until after Key “fired Mr. Flannery”—Key stated three times he did not

speak with Flannery about Weaver’s request before Weaver’s trial, and he repeated

that testimony at the August § 2255 hearing. At one point during the August § 2255

hearing, Key gave conflicting testimony that he “remember[ed] letting [his] lawyer

know” he wanted to testify for Weaver, yet Key was “never called . . . to trial.”

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testimony exculpating a codefendant, the evidence is not newly discovered.’”

(quoting United States v. Mosby, 12 F.3d 137, 138 (8th Cir. 1993) (per curiam))). 

Dornan reasonably did not believe he “could in good faith proceed” to seek a motion

for a new trial at sentencing and did not “think ethically [he] could proceed in that

fashion.”

Considering the totality of the circumstances, sentencing counsel Dornan

reasonably “rel[ied] upon the general rule that belated exculpatory testimony by a

codefendant who did not testify at trial is not newly discovered evidence,” Lofton,

333 F.3d at 876, and reasonably concluded England’s and Key’s silence at the time

of trial and change of heart after Weaver’s trial and after their sentencing hearings did

not constitute newly discovered evidence. See Bell, 761 F.3d at 911; United States

v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993). We conclude the district court erred

in concluding that sentencing counsel Dornan provided ineffective assistance in

failing to file a second motion for a new trial.

III. CONCLUSION

We affirmin part and reverse in part, and we reinstate Weaver’s conviction and

sentence.

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