Bruce Kelly EVANS, Appellant, v. UNITED STATES of America, Appellee, 200 F.3d 549

BEAM, Circuit Judge. Bruce Kelly Evans appeals the district court’s denial of his motion for an evidentiary hearing on his claim of ineffective assistance of counsel in this action for habeas corpus relief under 28 U.S.C. § 2255. We affirm. I. BACKGROUND Evans was shot in the face by his wife at their home. When the police arrived to investigate the shooting, they noticed marijuana residue on the kitchen table. The police later obtained a warrant to search the house for, among other things, drugs and drug paraphernalia.

While conducting the search, the officers found and seized several photographs and two rolls of undeveloped film. The photographs depicted Evans’s marijuana growing operation, including a picture of Evans sitting at a table that is covered with marijuana. Evans was arrested and indicted on one count of conspiring to manufacture and distribute marijuana, one count of using a firearm in relation to a drug trafficking crime, and two counts of being a felon in possession of a firearm.

Evans challenged the search and seizure of the photographs and undeveloped rolls of film at a suppression hearing, claiming that these items were not within the scope of the warrant. At the suppression hearing, the Assistant United States Attorney told the district court that the rolls of undeveloped film contained “family pictures” and that these “family pictures” would not be presented at trial. This statement ended any further argument regarding the undeveloped rolls.

The district court denied Evans’s motion to suppress the photographs that had been seized from the house because the photographs fell within the plain view exception to the warrant requirement. The photographs were introduced at trial where Evans, who was tried jointly with several co-conspirators, was convicted of conspiracy, use of a firearm in drug trafficking, and being a felon in possession of a firearm. We upheld the denial of the motion to suppress on appeal, agreeing with the district court’s plain view analysis. See United States v. Evans, 966 F.2d 398 (8th Cir.1992).

Evans now says that there was evidence available before the suppression hearing showing that the photographs admitted at trial actually came from the undeveloped rolls of film. He contends that if the photographs came from the undeveloped rolls, his Fourth Amendment rights were violated because the undeveloped rolls were not within the plain view exception. He claims that an evidentiary hearing would allow him to conclusively establish that the photographs came from the undeveloped rolls and that his counsel was ineffective for failing to raise this issue at the suppression hearing. II. DISCUSSION A

section 2255 petition can be dismissed without an evidentiary hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusory. See Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998). We review the denial of a motion for an evidentiary hearing for abuse of discretion. See id. We find that even if we were to accept Evans’s contentions as true, he would not be entitled to relief.

To establish an ineffective assistance of counsel claim, Evans must prove that counsel’s performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Evans must also prove prejudice by demonstrating that absent counsel’s errors, there is a reasonable probability that the result of the proceeding would have been different. See id. at 694, 104 S.Ct. 2052. Evans argues that his counsel’s performance was deficient because his counsel did not properly review all of the government’s evidence prior to the suppression hearing.

Evans says that if his counsel had reviewed the evidence, he would have noted that: (1) in an interview of Evans’s wife, Cynthia, a police officer told her that the photographs “were undeveloped” and that “[tjhey had the film developed”; and (2) during grand jury testimony, Evans’s wife stated that she saw the photographs when she spoke with the police officers. We question whether Evans can show deficient performance by his counsel.

Assuming that his counsel had not reviewed all of the evidence, we are not convinced that careful scrutiny of the government’s materials would have led counsel to conclude that the photographs at issue came from the undeveloped rolls of film. However, we need not decide whether counsel’s performance was inadequate because we find that Evans was not prejudiced by any claimed deficient performance. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (noting that a court need not determine whether counsel’s performance was deficient before determining whether defendant was prejudiced).

We find that Evans cannot demonstrate prejudice because a review of the record from the six-day trial shows that there was significant evidence against him. At trial, Dwight Stowe, a co-conspirator, testified that Evans helped him start a marijuana growing operation. Evans provided grow lights and delivered marijuana plants to Stowe. Evans also advised Stowe on treating a fungus that had attacked Stowe’s marijuana plants. Stowe also testified that after growing, cutting, trimming, drying, and bagging the plants, he sold marijuana to Evans.

The government presented numerous other witnesses who aided Evans’s marijuana operation or were solicited by Evans to grow marijuana. Robert Bechtol also testified that Evans helped him set up a growing operation. Evans provided Bechtol with growing lights, buckets, drip pans, and marijuana seeds, and Evans took some of the marijuana that Bechtol produced. Ronald Dukes testified that Evans solicited him about growing marijuana.

While Dukes declined to become a grower for Evans, Dukes did help Evans clean marijuana on 50 to 100 occasions and helped Evans sell bags of marijuana once or twice a week for a period of about two years. Nathan Ward also testified that Evans asked him to start a marijuana growing operation. Evans told Ward that, he would provide the lights, marijuana plants, and fertilizer. Cynthia Evans testified that she drove Evans around while he sold marijuana and that Evans carried marijuana in plastic bags. Cynthia also helped Evans, Ron Dukes, and Evans’s brother, Jack Evans, dry marijuana.

She testified that she heard conversations between Evans and his brother about how to divide proceeds from the marijuana sales. In view of the substantial amount of other evidence against Evans, we find no prejudice from the introduction of the photographs at trial. To prove prejudice, Evans points only to a statement at the sentencing hearing that the pictures were “overwhelming to them [the jury] in their deliberations” and that the jury found the photographs corroborative of Cynthia Evans’s testimony.

However, this statement was made by counsel for Rhonda DeWitt, one of Evans’ co-defendants, in arguing for a lesser sentence for DeWitt. The evidence against DeWitt was thin, and she was largely convicted on the strength of the photographs because Cynthia Evans testified that the photographs were taken in DeWitt’s kitchen. Thus, the photographs may have been a substantial factor in corroborating the testimony of Cynthia Evans to obtain the conviction of DeWitt, but they were not a substantial factor in the conviction of Bruce Kelly Evans. III.

CONCLUSION For the foregoing reasons, the decision of the district court is affirmed. . The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa. . We think it is a stretch to conclude that an isolated statement by the police officer would have given counsel reason to think the police developed the rolls of film. Moreover, the grand jury testimony proves only that Cynthia Evans saw the photographs at the police interview — not that the photographs came from the undeveloped rolls of film. .

Furthermore, there has been no showing that the photographs would have been suppressed even if Evans had shown that they came from the undeveloped rolls. Photographs from the undeveloped rolls may have been admissible as within the scope of the warrant. See United States v. Williams, 623 F.2d 535 (8th Cir. 1980) (denying motion to suppress photographs seized based on warrant that authorized cocaine, talwin, and heroin as the items to be seized); State v.

Petrone, 161 Wis.2d 530, 468 N.W.2d 676 (1991) (denying motion to suppress because police do not need additional warrant to develop rolls of film that were properly seized based on warrant that authorized search of home). However, we need not reach this question.