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 2018-03

Dustin Worthey v. United States ( 2018 )


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  •                   United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1443
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Dustin L. Worthey
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: March 21, 2018
Filed: March 22, 2018
[Unpublished]
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Before BENTON, MURPHY, and KELLY, Circuit Judges.
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PER CURIAM.
Federal inmate Dustin L. Worthey appeals after the district court1 denied his
28 U.S.C. § 2255 motion following a hearing. The district court granted a certificate
of appealability on Worthey’s claims that trial counsel was ineffective for failing to
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
request a continuance after the disclosure of new evidence, and for failing to call
Worthey to testify at trial. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
This court agrees that Worthey’s counsel did not provide ineffective assistance.
See Strickland v. Washington,
    466 U.S. 668
    , 687-88 (1984) (ineffective-assistance
claim requires showing of both deficient performance and resulting prejudice); Davis
v. United States,
    673 F.3d 849
    , 852 (8th Cir. 2012) (standard of review). Worthey did
not show that counsel performed deficiently in failing to request a continuance, as
counsel tried to have the new evidence excluded, did not commit an error that led to
the need for a continuance, and attempted to discredit the evidence and its admission
at trial; and the court credited counsel’s hearing testimony that Worthey did not want
a continuance. See Williams v. United States,
    452 F.3d 1009
    , 1013 (8th Cir. 2006)
(review of counsel’s performance is “highly deferential”); United States v.
Hernandez,
    281 F.3d 746
    , 748 (8th Cir. 2002) (witness credibility determinations are
“virtually unreviewable” on appeal). Worthey also did not show how a continuance
would have changed the trial outcome.
Worthey did not establish deficient performance in counsel’s failure to call him
to testify at trial, as counsel believed Worthey should not testify, and the court
credited counsel’s hearing testimony that Worthey did not want to testify. See
Bucklew v. Luebbers,
    436 F.3d 1010
    , 1017-20 (8th Cir. 2006) (counsel not ineffective
for not calling witness who would damage the case or whose testimony would be
cumulative);
    Hernandez, 281 F.3d at 748 
    (witness credibility determinations virtually
unreviewable); Bowman v. Gammon,
    85 F.3d 1339
    , 1345 (8th Cir. 1996) (counsel’s
strategic decisions are virtually unreviewable); United States v. Bernloehr,
    833 F.2d 749
    , 752 (8th Cir. 1986) (where attorney rested without calling defendant to testify,
“the accused must act affirmatively” if he wishes to testify). Worthey failed to show
how his testimony would have changed the trial outcome.
The judgment is affirmed.
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