Submitted April 13, 2015
Appeals from United States District Court for the Northern District of Iowa - Sioux City.
Ronald Weaver, Petitioner - Appellee (13-3320), Pro se, Forrest City, AR.
For Ronald Weaver, Petitioner - Appellee (13-3320): Rockne Ole Cole, Cole & Vondra, Iowa City, IA.
For United States of America, Respondent - Appellant (13-3320): Shawn Wehde, U.S. Attorney's Office, Northern District of Iowa, Sioux City, IA.
Ronald Weaver, Petitioner - Appellant (13-3321), Pro se, Forrest City, AR.
For Ronald Weaver, Petitioner - Appellant (13-3321): Rockne Ole Cole, Cole & Vondra, Iowa City, IA.
For United States of America, Respondent - Appellee (13-3321): Shawn Wehde, U.S. Attorney's Office, Northern District of Iowa, Sioux City, IA.
Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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 was ineffective 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.
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 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 convened Weaver'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 ...