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The Honorable Laurie Smith Camp, United States District Judge for the

District of Nebraska, adopting the Report and Recommendation of the Honorable

Thomas D. Thalken, United States Magistrate Judge for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1362

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United States of America,

Appellee,

v.

Cleophus Davis, Jr.,

Appellant.

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Appeal from the United States

District Court for the

District of Nebraska.

 [PUBLISHED]

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Submitted: November 15, 2004

 Filed: May 5, 2005

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Before MURPHY, HANSEN, and MELLOY, Circuit Judges. 

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HANSEN, Circuit Judge.

Cleophus Davis, Jr. appeals from the district court’s1

 denial of his 28 U.S.C.

§ 2255 motion, in which he sought to vacate his robbery and firearm convictions

based on alleged violations of his Fifth and Sixth Amendment rights. We affirm. 
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I.

The facts underlying Davis’s convictions are detailed in his direct appeal, in

which we affirmed his convictions. See United States v. Davis, 103 F.3d 660 (8th

Cir. 1996), cert. denied, 520 U.S. 1258 (1997). We repeat the facts here to the extent

they are relevant to Davis’s § 2255 claims. Davis was convicted by a jury of three

counts of armed bank robbery, 18 U.S.C. § 2113(a) and (d), and three counts of using

a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1). Some

eyewitness testimony was offered at trial, and the prosecutor used a ballistics expert

to link Davis to two of the three robberies.

Investigators recovered bullets from two of the robbery locations, and the

prosecutor used that evidence, in part, to identify Davis as the robber by tying the two

bullets to bullets later found in Davis’s car and in a parking lot near his home. The

prosecution’s expert, John Riley, worked for the FBI Laboratory Division in its

Elemental and Metals Analysis Unit, and had extensive experience analyzing the

elemental composition of various materials, including the lead used in manufacturing

bullets. Prior to trial, Riley performed a forensic analysis on the two bullets found

at the scenes of the robberies as well as one spent bullet found in a parking lot near

Davis’s apartment and ten bullets recovered from a partial box of ammunition found

in Davis’s car. Riley testified that he measured the trace elements in each of the

bullets using Inductively Coupled Plasma-Atomic Emission Spectrometry (“ICP”) in

an attempt to match particular bullets to each other. Based on the similarity among

six trace elements found in the bullets tested, Riley opined that the bullets were

“analytically indistinguishable,” and that “the three expended bullets either came

from this partial box of cartridges, made by Remington, or from another box of

cartridges that was manufactured by Remington on the same day that this box was.”

 

Prior to trial, Davis’s attorney moved to exclude Riley’s testimony on

foundational grounds. The district court rejected Davis’s motion to exclude the
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testimony, and during trial, Davis’s attorney extensively cross-examined Riley about

his methodology and his findings. Toward the end of trial, Davis’s attorney hired an

analytical chemist, Dr. David Dobberpuhl, as an expert to refute Riley’s testimony.

During his testimony, Dr. Dobberpuhl criticized Riley’s use of the ICP analysis to

support his opinion and challenged Riley’s methodology and conclusions. 

As noted, the government also offered some eyewitness testimony at trial,

which the magistrate judge characterized as weak. Because the robber wore a mask,

no one at the scene of any of the robberies got a clear view of the robber. One teller

was unable to pick Davis out of a lineup, though she narrowed it down to two people

in the lineup, one of whom was Davis. She then made a positive voice identification

of Davis after hearing the men in the lineup repeat statements similar to what the

robber had said to her during the robbery. A motorist, who noticed a man jogging

away from the vicinity of one of the robberies shortly after it occurred, later identified

Davis in a lineup and testified at trial that there was an 80-90% probability that Davis

was the man he saw leaving the vicinity of the robbery. 

After the district court denied Davis’s motion for acquittal, a jury convicted

Davis on all counts, and we affirmed the conviction on direct appeal. Davis then filed

a § 2255 motion raising four issues: (1) ineffective assistance of trial counsel for

failing to investigate or hire an appropriate expert witness to rebut the government’s

expert; (2) ineffective assistance of trial counsel for failing to interview any witnesses

prior to trial; (3) ineffective assistance of appellate counsel for failing to raise the

ineffective assistance of trial counsel issue on direct appeal; and (4) violation of the

Fifth Amendment’s Indictment Clause. The district court rejected the claims alleging

ineffective assistance of appellate counsel and Indictment Clause violations, but held

an evidentiary hearing on the two claims related to the alleged ineffective assistance

of trial counsel. 
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Davis presented testimony at the § 2255 hearing challenging the testimony and

conclusions of the prosecution’s metals expert. He also presented evidence that his

trial attorney had not interviewed the two eyewitnesses prior to trial, nor had he

contacted the officers who conducted the lineups concerning the eye witnesses’ level

of certainty at the time of the lineups. Having considered the additional testimony,

the magistrate judge recounted trial counsel’s cross-examination of Agent Riley at

trial, as well as Dr. Dobberpuhl’s testimony that refuted some of Agent Riley’s

opinions. The magistrate judge concluded that “defense counsel forcefully

challenged Agent Riley’s conclusions . . . [and did not] blunder by retaining an

analytical chemist rather than a metallurgist.” (Report and Recommendation at 19-

20.) The magistrate judge also concluded that the results of the trial would not have

been different if Davis’s trial attorney had hired a different expert. (Id. at 20.) The

magistrate judge further noted that the concerns raised about the FBI’s bullet analysis

by the § 2255 expert, who discredited the methodology used by the FBI, were not

widely disseminated within the scientific community in 1995 at the time of Davis’s

trial. The magistrate judge recommended to the district court that Davis’s § 2255

motion be denied. 

The district court agreed with the magistrate judge’s thorough analysis, adopted

the Report and Recommendation, and denied Davis’s § 2255 motion. The district

court granted Davis a certificate of appealability on all four issues raised in the §

2255 motion.

II.

 

We review the legal issues raised by the district court’s denial of Davis’s §

2255 motion de novo, but any underlying fact-findings are reviewed for clear error.

See Covey v. United States, 377 F.3d 903, 906 (8th Cir. 2004). Ineffective assistance

of counsel claims raise mixed questions of law and fact, and we accordingly review

those claims de novo. Id.
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A. Ineffective Assistance of Trial Counsel

To prevail on an ineffective assistance of counsel claim, Davis must satisfy the

familiar Strickland standard by establishing both that his counsel’s performance “fell

below an objective standard of reasonableness,” and that the deficient performance

prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 688, 691

(1984); United States v. Robinson, 301 F.3d 923, 925 (8th Cir. 2002), cert. denied,

537 U.S. 1238 (2003). “In determining whether counsel’s conduct was objectively

reasonable, there is a ‘strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.’” Nguyen v. United States, 114 F.3d

699, 704 (8th Cir. 1997) (quoting Strickland, 466 U.S. at 689). To satisfy the

prejudice prong of the Strickland analysis, Davis must establish a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. 

Davis raises two instances of allegedly ineffective assistance of trial counsel:

his counsel’s handling of the government’s expert witness including his failure to

obtain a competent rebuttal expert, and his counsel’s failure to interview witnesses

prior to trial. Following a hearing on both of these issues, the district court adopted

the magistrate judge’s Report and Recommendation, finding that Davis’s counsel was

not deficient on the expert witness issue, and that even if his counsel’s failure to

interview witnesses equated to deficient performance, such deficiency did not

prejudice Davis’s defense.

1. Expert Evidence

At the § 2255 hearing, Davis offered the testimony of Dr. Erik Randich, a

metallurgist, who challenged the FBI’s alleged ability to conclusively identify bullets

as coming from a specific box of bullets based on the bullets’ composition. The

magistrate judge determined that the information relied upon by Dr. Randich to
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challenge the FBI’s use of ICP to support its bullet-identification theory was not

readily available in 1995, at the time of Davis’s trial. Davis has failed to establish

that this factual finding was clearly erroneous. Dr. Randich did not begin his own

study challenging the FBI’s ballistics analysis until 1998, three years after Davis’s

trial. Dr. Randich admitted that he was unaware of any study or report in 1995 that

was critical of the FBI’s methodology. Davis’s trial counsel cannot be said to be

ineffective for failing to challenge the FBI’s methodology on a basis that was not

advanced by the scientific community at the time of trial. Cf. Dees v. Caspiri, 904

F.2d 452, 455 (8th Cir.) (“At most counsel might be deficient for failing to discover

and make use of a widely held scientific view.” (emphasis added)), cert. denied, 498

U.S. 970 (1990). 

Davis alleges that his trial counsel’s investigation of the case was

constitutionally deficient because he did not hire Dr. Dobberpuhl until after the trial

had started, giving the witness little time to prepare, and that his counsel should have

hired a metallurgist instead of an analytical chemist. Again, Davis offers Dr.

Randich’s testimony as an example of the type of expert his trial counsel should have

hired. Dr. Randich took issue with Riley’s conclusion that if the composition of two

bullets are found to be “analytically indistinguishable” they must have come from the

same source or pour of lead. He also took issue with the underinclusiveness of

Riley’s supporting data. 

Contrary to Davis’s assertions, Dr. Dobberpuhl provided similar testimony. He

challenged Riley’s conclusion that a finding that bullets were analytically

indistinguishable necessarily means that the bullets came from the same pour of lead.

Dr. Dobberpuhl also challenged the underinclusiveness of Riley’s sample, pointing

out that Riley did not test the composition of other bullets available in the community

to see if he could find other analytically indistinguishable bullets. Dr. Dobberpuhl

further disagreed with Riley’s conclusion that the bullets were in fact analytically

indistinguishable, pointing out that six of the ten bullets from the partial box did not
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have the same levels of copper. Nor has Davis established that the district court

clearly erred in finding that Davis’s trial counsel effectively and vigorously crossexamined Riley during trial. As explained in the magistrate judge’s detailed Report

and Recommendation, Davis’s trial counsel researched ballistics analysis and became

familiar with the scientific evidence, such that he was able to raise many of the same

issues addressed by Dr. Randich with Riley on cross-examination. We agree with the

district court that Dr. Dobberpuhl was an effective expert witness, and that Davis’s

counsel acted reasonably in employing him. 

2. Pretrial Investigation of Witnesses

Davis also alleges that his trial counsel’s performance was substandard when

he failed to interview either the eyewitnesses or the officers involved in the pretrial

identification procedures prior to trial. However, Davis’s counsel reviewed all notes

of interviews with the eyewitnesses, the officers’ reports of the lineups, and the

sketch artist’s notes and sketches, and used the information in an attempt to suppress

the witnesses’ in-court identification prior to trial. Davis’s counsel also used

inconsistencies contained in the police interview notes during cross-examination in

an attempt to impeach the witnesses, with some success. Both eyewitnesses testified

on cross-examination that their pretrial identifications were less certain than their incourt identifications. Davis’s counsel got one witness to concede that her description

of the robber’s clothes differed from the video tape of the robbery. In short, Davis’s

counsel elicited basically the same type of testimony that Davis says he would have

been able to use had he interviewed the eyewitnesses prior to trial. Davis has failed

to establish prejudice, that is, a reasonable probability that had his trial counsel

interviewed the eyewitnesses prior to trial, the outcome of his trial would have been

different. See Payne v. United States, 78 F.3d 343, 348 (8th Cir. 1996) (rejecting

ineffective assistance claim where, even if counsel’s performance was deficient for

failing to interview or investigate witnesses, defendant failed to establish that

interviewing witnesses would have changed the outcome). 
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Having carefully reviewed the entire record, we agree with the magistrate

judge’s careful and detailed analysis regarding the sufficiency of Davis’s trial

counsel’s performance. Hindsight can often reveal a better tactical line of

questioning, and time can often uncover a more effective expert witness, especially

as the body of scientific knowledge grows. The Constitution does not guarantee the

best representation, especially when measured through the lens of hindsight, but

rather effective representation. We cannot say on this record that Davis’s trial

attorney provided him with constitutionally ineffective representation. 

B. Ineffective Assistance of Appellate Counsel 

Davis argues that his direct appeal counsel (who was a different lawyer than

his trial counsel and a different lawyer than his current postconviction counsel) was

constitutionally ineffective for failing to raise his trial counsel’s ineffective assistance

as an argument on direct appeal. As Davis recognizes, ineffective assistance claims

are generally not raised on direct appeal. In fact, we often refuse to address such

claims if they are raised, directing appellants to raise the issue in a postconviction

proceeding. See United States v. Pherigo, 327 F.3d 690, 696 (8th Cir.) (“We decline

Piercefield’s invitation and state our oft repeated refrain–claims of ineffective

assistance of counsel are best evaluated on facts developed outside of the record on

direct appeal and are properly raised in a post-conviction motion under 28 U.S.C. §

2255 and not on direct appeal.”), cert. denied, 539 U.S. 969 (2003). Davis suggests

that the record was sufficiently developed at the time of the direct appeal to have

allowed such a claim to be reviewed. Davis’s reliance in this § 2255 proceeding on

the expert testimony elicited at the postconviction hearing belies his position. We

would not have had the benefit of Dr. Randich’s postconviction testimony refuting

the bullet analysis used by the FBI had we considered an ineffective assistance of

counsel claim as part of the direct appeal. Because we have concluded that trial

counsel was not constitutionally ineffective (using the same test and a better

developed record than would have been used on direct appeal), there would have been
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no viable claim for appellate counsel to raise on direct appeal concerning trial

counsel’s performance. Davis cannot meet either Strickland prong, and his claim is

rejected. 

C. Indictment Clause

Bank robbery is a federal crime only if the institution robbed is a federally

chartered financial institution or is insured by a federal deposit insurer. See 18 U.S.C.

§ 2113(f)-(h) (defining “bank,” “credit union,” and “savings and loan”). The

indictment returned by the grand jury charged that one of the banks robbed by Davis

was insured by the National Credit Union Administration (NCUA), when in actuality

it was insured by the Federal Deposit Insurance Corporation (FDIC). At trial, the

government established that the bank was insured by FDIC, and the jury instructions

and verdict form conformed to that evidence. On direct appeal, Davis challenged his

conviction on the basis that the indictment charged a different jurisdictional element

(NCUA-insured status) than that proved at trial (FDIC-insured status). We rejected

Davis’s argument, holding that “what occurred in the present case was not a

jurisdictional defect but a mere variance between the indictment and the proof, which

was not prejudicial to the defendant and therefore is not fatal to his conviction.”

Davis, 103 F.3d at 675. 

Davis attempts to resurrect the issue by arguing that the jury instructions

constituted a constructive amendment of the indictment in violation of the Fifth

Amendment. (See Appellant’s Br. at 52-55, quoting Stirone v. United States, 361

U.S. 212, 215-16 (1960), for the proposition that “after an indictment has been

returned its charges may not be broadened through amendment except by the grand

jury itself.”) As noted, we rejected Davis’s argument on direct appeal that the

divergence between the indictment and the jury instructions was a constructive

amendment as opposed to a mere variance in the proof. We find the present claim to

be the same claim in different clothes, and we will not reconsider the issue on
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collateral review. See Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992)

(“Claims which were raised and decided on direct appeal cannot be relitigated on a

motion to vacate pursuant to 28 U.S.C. § 2255.” (quoted source and internal marks

omitted)).

III.

The district court’s judgment denying Davis’s § 2255 motion is affirmed.

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