Weaver v. United States, No. 13-3320 (8th Cir. 2015)
Annotate this CaseA 2006 indictment charged Weaver, England, Key, and others, with crack-cocaine conspiracy and possession crimes. England and Key pled guilty. Only Weaver proceeded to trial. He was convicted. After a motion for a new trial was denied, Weaver’s trial counsel, Primmer, moved to withdraw. The court granted the motion and appointed Dornan to represent Weaver for sentencing. Although neither England nor Key, Weaver’s cousin, testified at Weaver’s trial, both testified at his sentencing hearing that Weaver was not involved in the charged conspiracy and distribution conduct. The court sentenced Weaver to 300 months imprisonment on each count, to run concurrently. After unsuccessful direct appeal, Weaver moved to vacate his sentence under 28 U.S.C. 2255(a), claiming ineffective assistance of counsel. The district court heard argument concerning Dornan’s failure to file a motion for a new trial at or before sentencing based on his knowledge that England and Key were then willing to testify. The court concluded Dornan provided ineffective assistance, vacating Weaver’s conviction. The Eighth Circuit reversed. Considering the totality of the circumstances, sentencing counsel Dornan reasonably relied upon the general rule that belated exculpatory testimony by a codefendant who did not testify at trial is not newly discovered evidence.
Court Description: Riley, Author, with Loken and Shepherd, Circuit Judges] Prisoner case - Habeas. For the court's decision in Weaver's direct appeal, see U.S. v. Weaver, 554 F. 3d 718 (8th Cir. 2009). The district court erred in finding that sentencing counsel was ineffective by failing to move for a new trial before sentencing;counsel acted reasonably when he investigated the availability of two co-defendants and concluded, based on their attorneys' representations, that the men had refused to testify for Weaver; in deciding not to file the motion counsel made strategic choices based on reasonable professional judgments supporting the limits on investigation and fulfilled his duty to make reasonable investigations or make a reasonable determination that makes particular investigation unnecessary; claim that counsel was ineffective for failing to object to Weaver's waiver of the right to have thirty days to prepare for trial under 18 U.S.C. Sec. 3161(c)(2) rejected for failure to show any prejudice from the lack of a written waiver; counsel reasonably relied upon the general rule that belated exculpatory testimony by a codefendant who did not testify at trial is not newly discovered evidence and reasonably concluded that the co-defendants' silence at the time of trial and change of heart after Weaver's trial and their sentencing hearings did not constitute newly discovered evidence.
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