United States v. Crawford (680 F. Supp. 2d 1177, 2009)

MEMORANDUM DECISION AND ORDER DENYING MARK CRAWFORD’S § 2255 PETITION (1:96-CR-05127, DOC. 812)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

Before the court for decision is Defendant Mark Crawford’s (“Crawford” or “Petitioner”) motion pursuant to Title 18, United States Code, section 2255 (“Petition”). Petitioner contends that he did not receive the effective assistance of counsel during his June 1999 trial, which resulted in a jury convicting him of racketeering, racketeering conspiracy, murder in the aid of racketeering, kidnapping in the aid of racketeering, conspiracy, embezzlement from an employee welfare benefit plan, six counts of wire fraud, three counts of money laundering, obstruction of justice by killing a witness, obstruction of justice by retaliation against a witness (murder), threatening to commit a crime of violence against a witness, and three counts of perjury. Petitioner is currently incarcerated, serving a life sentence. Doc. 720.

Crawford’s central contentions are that his lead trial counsel, Bill May: (1) was unprepared for trial and was impaired by physical, emotional, financial, and legal problems during trial; (2) failed to call a key defense witness, William Noel, who May indicated in his opening statement would testify; and (3) had an actual conflict of interest that adversely affected his representation of Petitioner. Crawford maintains that he received a constitutionally inadequate defense warranting a new trial.

II. PROCEDURAL HISTORY

A. Original Petition.

The original Petition alleged that Petitioner’s lead trial counsel, Bill May, was ineffective in seven respects: (1) May failed to secure the attendance of a key defense witness, William Noel, who purportedly would have testified to a conspiracy to frame Petitioner for the murder of Nick Brueggen; (2) May failed to adequately prepare for trial, having admitted as much to Petitioner; (3) May suffered “overwhelming personal and financial problems” compromising counsel’s duty of loyalty and creating a conflict of interest; (4) May suffered financial, emotional, and psychological problems contributing to his ineffectiveness as trial counsel; (5) May slept through certain portions of the trial proceedings; (6) May failed to offer Petitioner’s sons’ school attendance records into evidence to corroborate Petitioner’s alibi defense; and (7) May failed to object to the prosecution’s closing argument that Petitioner’s sons were at school all day on the day of the murder. Doc. 812.

B. Pnor Evidential Rulings

Several preliminary, evidentiary matters were determined by separate Memorandum Decision. Doc. 932. Petitioner’s reply brief (“Reply”) included numerous factual claims that were not discussed in the original petition, namely, that: (1) May failed to call other key witness; (2) May failed to call expert witnesses; and (3) arguments pertaining to May’s disciplinary records. 1:02-cv-06498, Doc. 7-1. Petitioner moved to expand the record with materials submitted as exhibits to the Reply relating to these new factual claims. Id., Doc. 9. The government opposed this motion in part and moved to strike certain portions of Crawford’s Reply, along with certain exhibits thereto, as time-barred. Doc. 920.

The Reply was construed as a motion to amend the Petition subject to the relation back doctrine. Doc. 932 at 6-7. The motion to amend was granted as to evidence pertaining to May’s alleged failure to call Petitioner’s sons’ Principal as a witness, id. at 21-22, but denied as to all other evidence regarding May’s failure to call other witnesses, including fact witnesses Todd Houston, Robert Weekley, and Amber Miller, id. at 15-17, and several purported expert witnesses, id. at 18-21. The government’s motion to strike newly offered evidence pertaining to May’s disciplinary record was granted on the ground that the offered evidence did not reflect a pervasive pattern of conduct or conduct related to May’s alleged failure to prepare for trials and/or the allegation that May operated under a conflict of interest. Id. at 22-24.

Defendant also moved to produce certain Criminal Justice Act (“CJA”) billing records and CJA 20 forms submitted by May in the context of the underlying criminal trial. The billing records were requested because Plaintiff believed they would help establish that May was unprepared for trial. 1:02-cv-06498, Doc. 8. The CJA 20 forms require counsel to disclose under penalty of perjury any outside income earned during the course of a CJA-funded representation. Crawford alleges that May never informed the CJA Panel Administrator of certain private compensation he was receiving during the trial and suggests that this failure, if proven, might undermine May’s credibility. Defendant’s motion was granted as to the CJA 20 Forms, but denied as to the billing records, because the billing records would shed no additional light on Petitioner’s allegations. Doc. 932 at 25-26. The CJA Panel Administrator produced the CJA 20 forms and the parties were permitted to, and did, submit supplemental briefs concerning those records. Id. at 27; Docs. 937 & 939.

The court heard oral argument on the Petition before its submission.

III. FACTUAL BACKGROUND.

A. Overview of the Enterprise.

The charges in this case relate to the organized crime activities of a racketeering enterprise known as the “Family,” which was based in Southeast Texas and led by Petitioner, the former mayor of Ingleside, Texas. The charged members of the Family were defendant Mark E. Crawford, Frank R. Bochicchio, John R. Crawford (Defendant’s brother), Mike Beckcom, Kirk A. Johnson, David Franco, George N. “Nick” Brueggen, Juan P. Galvan, and others. The evidence at trial established that Mark Crawford was the leader of the Family, and that he gave other members large, distinctive gold rings, with the Chinese symbol for “family” emblazoned on them. Reporter’s Transcript of Trial (“R.T.”) at 775-76 (Sipila). The ring symbolized loyalty, both to each other and to Family boss Mark Crawford. Id.; R.T. 2632:22-23 (Beckcom). The ring also meant that “anybody who fucks with the Family is going to fucking pay.” R.T. 776:14-15 (Sipila).

The Family members’ crimes, as charged in the indictment and proven at trial, fall into four main categories:

(1) Operation of a phony health insurance company, “Viking Casualty Company,” which defrauded health plan participant victims in and around Fresno, California;

(2) Operation of multiple employee staff leasing companies in southeast Texas and in Gulfport, Mississippi, which defrauded their clients and the IRS;

(3) Operation of a phony “Builder’s Home Warranty” insurance company in southeast Texas, with victims in Colorado and elsewhere; and

(4) Kidnapping and murder of one of the Family’s own members, Nick Brueggen, after he began to cooperate with federal law enforcement authorities in the Eastern District of California conducting a grand jury investigation into Viking Casualty Company.

B. The Viking Casualty Company Scam.

Count One’s racketeering predicate acts one (embezzlement from an employee welfare benefit plan), two (wire fraud), three (money laundering), and four (money laundering conspiracy) all pertain to Mark Crawford’s participation in a fraudulent insurance company with John Crawford, George Brueggen, Harry Clift, and others. See Second Superseding Indictment, Doc. 88 at 2-13.

From the fall of 1992 through 1995, a company called Ararat International Administrators (“Ararat”) operated in Fresno, California. R.T. 281 (Rodriguez). Ararat was a third party administrator of health insurance plans for small businesses. R.T. 280. Ararat accepted premiums from small business clients and, after deducting administrative fees, forwarded the premiums to an insurance carrier for underwriting to provide health benefits for plan participants (employees of the businesses). R.T. 281.

In late 1992, Ararat was looking for an insurance company to serve as its underwriter. R.T. 282. Insurance brokers Jar-man Holland and James Carroll, of Tennessee, helped Ararat find Viking Casualty Company (“Viking”), based in Corpus Christi, Texas. R.T. 316-20 (Carroll). During the search for Viking, James Carroll spoke initially with defendants George N. Brueggen and Harry E. “Skip” Clift, who represented themselves as representatives of Viking. R.T. 321. Both Brueggen and Clift told Carroll that Viking was willing to take over the risk and assume the business forwarded by Ararat. R.T. 321-22.

On March 25, 1993, Carroll and Holland, acting as representatives of Ararat, traveled to Corpus Christi to meet with Viking officials and finalize the arrangements for Viking to assume the Ararat block of business. R.T. 338. Mark Crawford and his brother John Crawford met Carroll and Holland at the airport, and brought them to what the Crawfords represented was Viking’s headquarters. Id. Brueggen and Harry Clift were brought in to the meeting and introduced as Viking executives. R.T. 340-41, 343. Ararat and Viking agreed in writing that Viking would assume health benefit underwriting for Ararat’s clients. R.T. 343-44. The agreement called for Ararat to collect health insurance premiums and keep 22.5% for its administrative fees and costs. R.T. 347. Ararat was also to keep 40% of the premiums collected to pay small claims, and remit the balance (minus agents’ fees) to Viking. R.T. 347-48. This amount remitted to Viking was approximately 30% of premiums collected. Id. The money, held in a trust account in Tennessee, R.T. 348, was to be wire transferred to an account set up by Brueggen, in Houston, Texas, R.T. 350.

Viking was an admitted insurance carrier in the District of Columbia, but was suspended, as of December 31, 1992, from conducting any business. R.T. 481-82 (Sheppard). Viking had never applied to do business in the State of California, and a Certificate of Authority permitting Viking to do such business has never been issued. R.T. 496 (Torrescano). Viking was seriously undercapitalized and was essentially without assets. See R.T. 482.

Racketeering predicate act one (embezzlement from an employee welfare benefit plan) encompassed the whole of Mark Crawford’s conduct regarding Viking Casualty Company and the premium funds received from Ararat International Administrators. Doc. 88 at 6-9. From March 1, 1993, through July 30, 1993, Ararat transmitted $222,573 in health insurance premium funds to Viking accounts under the control of Brueggen, Mark Crawford, and John Crawford. R.T. 698 (Spjute). When Ararat submitted claims to Viking on behalf of its policyholders, Viking did not pay them, R.T. at 719, and instead kept the premium funds for the Crawfords’ use and benefit.

Racketeering predicate act two (wire fraud) consisted of three sub-predicates, each pertaining to a specific document sent over the wires. Doc. 88 at 9-10. Sub-predicate one was a March 29, 1993 facsimile from Brueggen, as a representative of Viking, to Ararat representative James Carroll, id. at 10, instructing Carroll to send Money to a Houston account, R.T. 350. Sub-predicate two was an April 8, 1993 facsimile from James Carroll to Brueggen, breaking down how premium payments would be distributed. R.T. 353. Sub-predicate three was a June 8, 1993 facsimile from Brueggen to Jarman Holland, Carroll, and VK Holding Company, requesting payment of fees to Viking Casualty and himself (Brueggen). R.T. 357.

C. The Staff Leasing Scam.

Racketeering predicate acts fourteen (wire fraud), fifteen (money laundering), and sixteen (money laundering conspiracy) all pertain to the participation of defendant Mark Crawford and his co-defendants in the Family’s fraudulent staff leasing companies, including, but not limited to, Superior Employee Leasing and StaffPro. Doc. 88 at 24-28. A staff leasing company contracts to hire all of a client business’s employees, and then leases those employees back to the client. The staff leasing process defers expenses, such as payroll, quarterly payment of the employer’s share of employee tax withholdings to the IRS, and the payment of workers’ compensation insurance. See generally R.T. 2092-94 (Zamora).

The Family’s staff leasing businesses assured its clients that they would duly hold and forward all payroll taxes owed to the IRS. The companies would collect the employer’s share of the employees’ withholding tax payments from client companies. However, instead of forwarding all of the taxes to the IRS, the Family pocketed much of the money. See generally R.T. 900-02 (McGuill); R.T. 1017-19 (Tichenor); R.T. 1391 (Cagle). The Family’s staff leasing companies failed to pay taxes due and often failed to file tax returns at all for the businesses to which it leased employees. See generally R.T. 2067-81 (Zamora). The scheme netted the Family millions of dollars in just a few years. Id.

Between 1993 and 1996, Family members acting under the direction of Mark Crawford formed a number of overlapping and interrelated staff leasing companies. The strategy was to operate these businesses, pocket the payroll tax and insurance money, and, when the IRS started closing in, shut the company down, declare bankruptcy, and transfer the clients to a new employee staff leasing company under another Family member’s name. See R.T. 1347-49, 1354 (Beckcom); R.T. 895 (McGuill); R.T. 962-64 (Moreno); R.T. 1013-1017; R.T. 1093 (Tichenor). The scheme generated tens of thousands of dollars for Mark Crawford and the Family per week. At one point Mark Crawford alone was incurring at least $35,000 per month in personal expenses. See R.T. 2121 (Zamora); R.T. 1349 (Beckcom).

All of the staff leasing businesses were interrelated. Defendant Mark Crawford, often together with his brother, John, acted as the boss. See, e.g., R.T. 752-54 (Sipila), R.T. 888 (McGuill), R.T. 1348 (Beckcom). Co-defendant Bochicchio put the bank accounts in his name for multiple businesses. See, e.g., R.T. 772, 853-54 (Sipila); R.T. 1524, 1527 (Obenhaus). Co-defendant David Franco was the accountant for all of the companies. R.T. 778-79 (Sipila). Galla McGuill was bookkeeper. R.T. 888-92 (McGuill). Multiple businesses operated from the same offices. Id. No matter which Family member a business might nominally belong to, money was siphoned out to support Mark Crawford and his fellow Family members and friends in lavish style, and to maintain the enterprises. See, e.g., R.T. 786-90, 793-94, 806-07 (Sipila); R.T. 899 (McGuill); R.T. 964-67 (Moreno); see generally R.T. 2094-110 (Zamora).

The evidence established that the various companies and their revenues were, as a practical matter, completely interchangeable. As one witness put it, “everything got intermeshed and intertwined-it all became a big mess.” R.T. 850, 852 (Sipila); see generally R.T. 1013-17 (Tichenor). For example, money would be siphoned out of Superior Employee Leasing and transferred to StaffPro, and “vice versa.” R.T. 794-96 (Sipila). This would occur by dummy payments to individuals, or by wire transfers. R.T. 798-802; see generally R.T. 1186-91 (R. Garza). Large payments from these interchangeable accounts would often go to Bochicchio. See, e.g., R.T. 802-03 (Sipila); R.T. 903-04, 932 (McGuill); R.T. 984-87 (Moreno); R.T. 1154-55 (Willis); R.T. 1175-76 (R. Garza). Bochicchio would pick up his payments at multiple locations, including the StaffPro offices R.T. 1128-29 (Willis).

D. The Builders Home Warranty Insurance Scam.

Count One’s racketeering acts seven through nine (wire fraud), ten through twelve (mail fraud), and thirteen (money laundering) pertain to co-defendant Bochicchio’s participation in the Builder’s Home Warranty insurance scam. Doc. 88 at 15-21. This scam primarily enriched the deceased, Nick Brueggen, and later Bochicchio, but money also flowed to Mark Crawford and the other Family members to maintain them lifestyles and to fund their criminal activities.

The builder’s home warranty insurance scam’s main victims were the new home warranty customers of a company called Builder’s Home Warranty (“BHW”), located in Englewood, Colorado. R.T. 1763-67 (DeRocher). BHW’s business was to provide HUD-required home warranties to home builders to protect new home buyers. R.T. 1763-65. On average, a builder would pay BHW about $300 per home for the new home buyer’s warranty protection, which was supposed to cover the cost of fixing any workmanship problems that surfaced in the home. Id. BHW was not an insurance company. Rather, HUD required it to contract with an insurance company to provide extra protection to the new home buyer. R.T. 1765-66. The insurance company received, on average, about half of the fee the builder paid to BHW. Id. BHW was to cover repairs costing up to $5,000; BHW’s insurance company would cover repairs costing more than $5,000. R.T. 1765.

Starting in 1993, Brueggen, doing business as “People’s Insurance Company,” began providing “insurance” coverage for BHW for the home warranties. R.T. 1766-67. Every month, BHW would overnight mail or wire transfer tens of thousands of dollars in insurance premiums from Colorado to Brueggen in Houston. R.T. 1767-69. By 1996, the payments were in the neighborhood of $60,000 per month. R.T. 1768-69. In addition, BHW also sent Brueggen a “consulting fee” amounting to ten percent of the monthly premiums. R.T. 1770-71. Between 1993 and his murder on May 6, 1996, Brueggen collected roughly $673,000 from the BHW scam. R.T. 1960-64 (Spjute); Government Exhibit (“GX”) 5R.

Brueggen administered his “insurance business” with the help of a CPA, James Knight, in Houston, Texas. R.T. 1559-60 (Knight). Payments and paperwork would come in to the CPA’s office from BHW. Following Brueggen’s instructions, Knight and his staff would pay Brueggen’s personal expenses, and would stamp the insurance-related paperwork with a stamp bearing the signature: Mulk Raj Dass. R.T. 1633-36 (Hettenbach). This same fictitious signature stamp was used by Bochicchio and Mark Crawford for the operation of some of the employee staff leasing businesses. R.T. 1527-30 (Obenhaus).

Brueggen was not a licensed insurance agent, nor was he affiliated with 'any real or legitimate insurance carrier. See R.T. 1743-46 (Sherman). The name under which he chose to operate was in fact the name of a real insurance company, affiliated with the large and reputable Progressive Casualty Insurance Company. R.T. 1721-24 (Schneider). However, Brueggen had nothing whatsoever to do with Progressive Casualty, the real insurance company, the real affiliates of which never did business in Colorado or Texas after 1990, and never underwrote builder’s home warranty insurance policies. Id. Regardless, Brueggen, and later Bochicchio, worked actively to maintain the charade. As the name of the real insurance company changed over the years from “Peoples Insurance Company” to “Pro West Insurance Company” to “Progressive West Insurance Company,” the name of the fake company in Texas changed with it. R.T. 1722; R.T. 1914-15, R.T. 1926 (Garcia). The phony companies never purchased insurance.

From 1993 through the beginning of 1996, most of the BHW insurance premium windfall apparently went to enrich Brueggen. R.T. 1960-61 (Spjute); GX 5R. Some of Brueggen’s insurance premium income, however, also went to the Family. For instance, in late 1995, Brueggen wired $10,000 to Mark Crawford so that one of the Family’s employee staff leasing companies, Unique Contracting, could meet its payroll. R.T. 3857 (Recio).

E. Bochicchio Becomes the Front Man.

In early 1996, Brueggen began to see the need for a front man for the BHW scam. In January 1996, he received a letter from the United States Attorney’s Office in the Eastern District of California informing him that he was a target of a grand jury investigation into Viking. R.T. 2267 (Horne). Because the federal authorities were focusing on Brueggen, it was decided that Bochicchio would put the phony BHW business in his name. R.T. 2630 (Beckcom). This meant, Bochicchio would play the same “front man” role he played for Mark Crawford’s staff leasing companies. Id.

In March of 1996, Brueggen brought Bochicchio to his accountant’s office and introduced Bochicchio as the person who would be taking over the insurance business. R.T. 1574 (Knight); R.T. 1645 (Hettenbach). Like Brueggen, Bochicchio had no insurance license and no connection whatever to any bona fide insurance carrier. See R.T. 1745 (Sherman); R.T. 1721-24 (Schneider). Bochicchio instructed the accountant to continue to use the “Mulk Raj Dass” (an unrelated person) signature stamp when paying the company’s bills. R.T. 1636 (Hettenbach). From then on, Bochicchio was in frequent contact with the accountant’s office, giving instructions. See R.T. 1610-12 (Knight); R.T. 1645-52 (Hettenbach). That same month, Brueggen also notified BHW that premiums were no longer to be sent to “Peoples Insurance Company,” but instead to Peoples/BHW in care of Bochicchio. See R.T. 1774-75 (DeRocher).

In late March 1996, Brueggen and Bochicchio incorporated, in the State of Texas, the fraudulent insurance company “People’s BHW” and a holding company, Infinity Operations. R.T. 1614-18 (Knight). In April 1996, Bochicchio and Brueggen set up two new bank accounts in the name of Bochicchio’s Peoples/BHW company, but to which Brueggen had access, at the First State Bank in Corpus Christi, Texas. R.T. 1682-83 (Russell). Bochicchio personally authorized the new accounts. R.T. 1683.

Beginning in March or April of 1996, BHW, following Brueggen and Bochicchio’s instructions, began sending BHW premiums to Bochicchio instead of directly to Brueggen. R.T. 3784-85 (DeRocher). At this point, Brueggen was still alive and had access to the accounts. See R.T. 1682 (Russell).

F. Conspiracy to Distribute Marijuana.

When the staff leasing companies of the Family began to have financial difficulties, Mike Beckcom suggested to Mark Crawford that they sell marijuana to make some extra cash. R.T. 2626-27 (Beckcom). This discussion occurred in early 1996. R.T. 2627, 2674. During this same time, defendant Kirk Johnson was calling Mike Beck-com asking Beckcom for different drugs. R.T. 2627. Kirk Johnson also asked Beck-com if he knew of ways to make some extra money. Id.

Mike Beckcom obtained thirty pounds of marijuana from a man in Houston for $17,500. R.T. 2674-76. He received delivery of the marijuana in a box from the man. R.T. 2678. Inside the box, the marijuana was bundled into various weights. R.T. 2679. Mike Beckcom and Mark Crawford then sat down to decide how they were going to sell it. R.T. 2680. They decided to drive it to New York. R.T. 2681. Mark Crawford and Beckcom drove the drugs to New York, where they contacted a man Beckcom knew. R.T. 2681. Beckcom’s contact agreed to purchase the drugs for $800 per pound. R.T. 2682. Mark Crawford and Mike Beckcom met with the man in a hotel room and gave him a duffel bag containing 50 pounds of marijuana. R.T. 2684.

Mark Crawford and Mike Beckcom then traveled to the Port Arthur, Texas, area to provide Kirk Johnson five pounds of the marijuana to sell for the Family. R.T. 2627. Kirk Johnson sold the marijuana and gave Mike Beckcom some of the proceeds from the sale. Id. Mike Beckcom also received money wired to him from New York as a result of the delivery of marijuana there. Id. When Beckcom received money from the sale of marijuana, he gave the money to the head of the Family, Mark Crawford. R.T. 2628.

G. Bankruptcy Fraud

In September of 1994, Mark Crawford, doing business as Superior Employee Staff Management, Inc. (“Superior”), filed a Chapter 11 bankruptcy petition in Texas. R.T. 2022-23 (Wendlandt). Chapter 11 allows a business to continue to operate under Bankruptcy Court protection while it pays off its debts, under the supervision of a trustee. R.T. 2021.

At the time this bankruptcy petition was filed, the business owed the IRS more than $1 million in withholding taxes, penalties, and interest. R.T. 2023. When a business such as Superior files bankruptcy, the officers of the company become “debtors-in-possession.” R.T. 2025. A debtor-in-possession has a duty to operate the business in a reasonable manner so that the creditors of the business can receive a fair return on the amounts owed to them. R.T. 2025-26.

A monthly operating report must be filed with the bankruptcy court, stating, under penalty of perjury, the amount of money the business has taken in, the expenses of the business, and the value of any assets. R.T. 2027. Mark Crawford submitted two monthly operating reports, one covering AugusG-September, 1995, and another covering October-November, 1995. R.T. 2028. The reports were signed by Mark Crawford under penalty of perjury. R.T. 2027.

On January 8, 1996, Mark Crawford testified at a hearing in U.S. Bankruptcy Court, Corpus Christi, Texas, concerning Superior’s Chapter 11 petition. R.T. 2029. Petitioner admitted taking money earmarked for paying withholding taxes and using the funds to pay an insurance company. R.T. 2031. He admitted that he paid the insurance company $2 million, the bulk of which came from diverted employee withholding taxes. Id.

H. The Kidnapping and Murder of Nick Brueggen.

In April 1996, defendant Mark Crawford learned that Nick Brueggen had met with federal authorities in Fresno. See R.T. 2268 (Horne); R.T. 2634 (Beckcom). He became enraged that Brueggen was “snitching in California.” R.T. 2635 (Beck-com). Mark Crawford said: “Nick’s dead.” R.T. 2636 (Beckcom).

In early May 1996, Bochicchio mentioned to his bank teller in Corpus Christi that “some associates of his were picking up a gentleman from the airport that was coming from Houston.... ” R.T. 1928 (Garcia). On May 6,1996, defendant Mark Crawford told Mike Beckcom and defendant Kirk Johnson to pick up Brueggen at the Corpus Christi airport when his flight arrived from Houston. R.T. 2637 (Beck-com). For the promise of $2,500 from Mark Crawford, Kirk Johnson agreed to help. R.T. 2638. Beckcom and Johnson picked up Brueggen and brought him to Mark Crawford’s building at 561 Jacoby Lane. R.T. 2641-42. When they arrived at Jacoby Lane, the three men got out of the car and entered the building. R.T. 2643. Beckcom and Johnson drew guns on Brueggen. R.T. 2643-44. Mark Crawford screamed at Brueggen: “You fucked me, you screwed my family. You’ve fucked me for the last time. You are going to fix it today and you are leaving the country.” R.T. 2644. Johnson kept Brueggen at gunpoint while Mark Crawford and Beck-com went to Wal-Mart. R.T. 2645-46.

When Crawford and Beckcom returned to Jacoby Lane, Crawford and Brueggen had a conversation about some documents. R.T. at 2647. Brueggen told Crawford the documents were in Houston. Id. Crawford indicated they were going to retrieve the documents from Houston. See id. Crawford then took Brueggen’s keys, and forced Brueggen to get into a large toolbox (a “Jobox”). R.T. 2648. Johnson remained behind with Brueggen while Crawford and Beckcom went to the Corpus Christi airport to purchase tickets to Houston. R.T. 2648-49. After making travel arrangements, Crawford and Beck-com returned to Jacoby Lane. R.T. 2649. By then, Johnson had let Brueggen out of the Jobox. Id. Crawford became angry and made Brueggen get back into the box, threatening: “Get in the fucking box or I will pop a fucking cap into you.” Id. Brueggen got back into the box, and Crawford closed the lid. R.T. 2650. It was extremely hot in the building.

Mark and Beckcom then went to a Dairy Queen in Ingleside to meet with Bochicchio. R.T. 2650 (Beckcom). As Beckcom put it:

We sat down and they had a conversation. First Frank [Bochicchio] was kind of guarded. I could tell that everyone was kind of nervous. Crawford asked him-it was pretty much in relationship to a wire transfer that was expected into the account that Bochicchio had for Brueggen.

Id. Later that afternoon, while Brueggen was still locked in the Jobox, Bochicchio stopped by 561 Jacoby Lane, and Beckcom introduced Bochicchio to Johnson. R.T. 2652 (Beckcom). “The rat’s in the trap,” Mark Crawford told Bochicchio. Id. Bochicchio hugged Mark Crawford, then Bochicchio left. Id.

A short time later, Mark Crawford, Beckcom, and Kirk Johnson made a final trip to Wal-Mart, leaving Brueggen locked in the Jobox. At Wal-Mart the three picked up duct tape and a garden hose. R.T. 2653-55. When they returned to Jacoby Lane, Beckcom backed his Ford Explorer into the building, leaving it running. R.T. 2656 (Beckcom). Johnson taped one end of the garden hose to the Ford’s exhaust pipe. Id. Mark Crawford taped the other end to the Jobox. Id. Mark Crawford and Johnson then together taped over all of the remaining air holes in the Jobox. R.T. 2656-57. They stacked debris on the Jobox to “dampen the noise” of Nick Brueggen’s last moments. R.T. 2657. Mark Crawford, Beckcom, and Johnson then walked outside the building and made small talk while Brueggen was asphyxiated by the exhaust fumes. R.T. 2657-58 (Beckcom). After Brueggen was dead, Kirk Johnson took the “family” ring off Brueggen’s hand at Mark Crawford’s request. R.T. 2661-62.

A few days after the murder, Mark Crawford instructed Mike Beckcom to give Kirk Johnson the “Family” ring formerly worn by the man Johnson helped murder. R.T. 2625, 2663-64 (Beckcom). “Welcome to the Family,” Mark Crawford told Johnson. R.T. 2625, 2663-64. Johnson accepted the ring. See R.T. 2437.

About a month later, on June 6, 1996, Brueggen’s body was found in a shallow grave behind 561 Jacoby Lane. R.T. 2466-69 (Rivera). On hearing that the body had been found, Bochicchio told Beckcom, “Yeah, that’s Mark’s problem — I told him not to bury him there.” R.T. 2665 (Beck-com).

After the body was found, Mark Crawford became a fugitive. He left Texas and abandoned his red Mercedes in New Orleans. R.T. 2808 (Bates). In the car, Mark Crawford left behind BHW correspondence between Brueggen and BHW CEO Andrew Jelonkiewicz. R.T. 2810-11 (Bates); GX 8C-1 and 8C-2.

Mark Crawford was arrested in Mississippi on July 13, 1996. R.T. 2831-32 (Kerley). He had a disguise, which included a woman’s wig and clothing. R.T. 2833-34. In the mobile home where Crawford was arrested, officers found a blue notebook containing Mark Crawford’s inculpatory statements concerning the kidnapping of Nick Brueggen. R.T. 2834-37.

I. Bochicchio’s Continued Maintenance of the Scams.

At the same time that Mark Crawford was bestowing his “family” ring upon Kirk Johnson, a few days after Nick Brueggen’s murder but before his body was found, Bochicchio transferred the Peoples/BHW and Infinity Operations bank accounts again, this time to accounts in Corpus Christi over which Brueggen had no control. R.T. 1885-86. Starting a few days later, Bochicchio made a series of large withdrawals from the account. On May 18, 1996, he made two cash withdrawals, for $7,206.38 and $3,245, respectively. R.T. 1888-89; Government’s Exhibits 5W-3, 5W-4. The very next day, he withdrew $8,463 in cash. R.T. 1889; Government’s Exhibit 5W-5. About eleven days later, on May 31, 1996, he withdrew $8,846 in cash. R.T. 1889; Government’s Exhibit 5W-6. On May 15, 1996, Bochicchio also took out a loan for $10,000 against a certificate of deposit he had purchased with BHW premium money. R.T. 1890-92; GX 5W.

Meanwhile, insurance premium money continued to flow in from Colorado. From 1996 through 1998, Bochicchio took in over $2.2 million in BHW premium funds. R.T. 1964 (Spjute); Government’s Exhibit 5R; R.T. 1898-1900 (Garcia). Bochicchio used the money for personal items, to purchase real property in the Corpus Christi area, buy certificates of deposit, and obtain cash. R.T. 1965 (Spjute); R.T. 1905-1922 (Garcia). At no time did Bochicchio ever engage in any insurance related activities, home warranty or otherwise. See R.T. 1900-03 (Garcia). However, Bochicchio from time to time mailed letters on fake letterhead, sometimes with forged signatures, to Colorado to keep the money coming. See, e.g., R.T. 1902-04 (Garcia); R.T. 1965 (Spjute), 1969-79 (listing various forged documents purporting to show existence of an insurance business, found during a search warrant executed at Bochicchio’s residence). Also, Bochicchio, from time to time, changed the name of his “insurance company” to correspond to the name changes of the real insurance company. See, e.g., R.T. 1914-15 (Garcia) (accounts in the dba name “Peoples Pro West” opened); R.T. 1926 (Garcia) (company now referred to as “Progressive Insurance Company”); see also R.T. 1722 (Schneider) (listing name changes of the real company).

J. State Murder Trials.

May served as Petitioner’s trial counsel in both state trials. Mark Crawford was tried twice in the State of Texas for his involvement in the murder of Nick Brueggen. The first trial ended in a hung jury; the second in acquittal.

K. Federal Indictment.

Mark Crawford and numerous other members of the Family were indicted in the Eastern District of California on May 30, 1996 on multiple felony charges related to the racketeering enterprise and the kidnapping and murder of Nick Brueggen. l:96-cr-5127 Docs. 1, the grand jury returned a second alleging the following charges:

Id.

On July 27, 1998, defendant Mark Crawford was arraigned on the second superseding indictment and pleaded not guilty. Doc. 103.

L. Petitioner’s Representation During the Federal Trial.

Fresno Attorney E. Marshall Hodgkins was initially appointed by the district court to represent Crawford in the federal case. Crawford specifically requested that May be appointed to represent him as well. Doc. 55. At a hearing on March 3, 1998, Hodgkins represented that, in his 20 years of practice, this was “the most complex case ... [he had] ever handled.” Petitioner’s Reply, Doc. 7, Exhibit (“PRX”) 15 at 4. Hodgkins also requested that May be appointed co-counsel. May agreed to serve as lead counsel, with Hodgkins serving the function of local counsel. Id. at 6. May agreed, representing that he knew “so much about the case, it would take forever for me to tell anyone else everything I know about it....” Id. at 6-7. May was appointed “attorney of record” and “trial counsel,” while Hodgkins was appointed “local counsel” to “assist May at his direction.” PRX 16 at 1-3, 5, 7.

In March 1999, Hodgkins withdrew as counsel for Crawford. See Doc. 250. In April 1999, approximately two months before trial, Roger Litman was appointed to replace Hodgkins. PRX 3, Litman 6/20/03 Depo., at 6-7. Litman was wary of accepting an appointment in such a complicated case so close to trial, but May told him “not to worry about having enough time to get up to speed because the case was going to be continued....” Id. at 7-8. Litman accepted the appointment in large part based on May’s assurance that the trial was going to be continued. Id at 8.

On June 7, 1999, a few weeks prior to the scheduled trial, the district court held a hearing to consider motions in limine. May failed to appear. Litman relayed to the court a telephone conversation he had with May that morning in which May had said that because of May’s financial situation, “there is no way [May] could be [in Fresno] for two or three months, having to pay the hotel, having to pay for the ongoing operation of his office in Corpus Christi without, and the words he use were, ‘going broke.’ ” PRX 21, Reporter’s Transcript of 6/7/99 Proceedings, at 16. May also told Litman that even “assuming the housing situation could be worked out so that he wasn’t in a position where he was going to be going broke, that [May] felt that he could not be fully prepared to represent Crawford without a 30-day continuance of the trial.” Id. at 22. The request for a continuance was denied. Id. at 22.

This left Litman with, in his opinion, insufficient time to adequately prepare for trial:

[W]hen I got onboard, Mr. May had assured me the case was going to be continued, and I’d have sufficient time to be properly prepared .... And in fact, when he sent me in there, I’ll say as his sacrificial lamb, to make and unsupported request for a continuance, that was ... I won’t say summarily rejected, but rejected and denied by the court because it was without legal or factual basis, um ... I started wondering, what am I getting into.

PRX 5, Litman 2/24/06 Depo., at 173. Lit-man believes that he was “duped” by May on the issue of the continuance. Id. at 175. Litman did not raise his concerns about inadequate time to prepare with the court nor with anyone else. By then, the case had been pending for three years, and May had been in the case as attorney of record for over one year and three months.

M. Disposition of the Federal Trial.

The jury trial began on June 23, 1999. Doc. 368. On August 20, 1999, the jury convicted Petitioner of racketeering, racketeering conspiracy, murder in aid of racketeering, kidnapping in aid of racketeering, conspiracy, embezzlement from an employee welfare benefit plan, six counts of wire fraud, three counts of money laundering, obstruction of justice by killing a witness, obstruction of justice by retaliation against a witness (murder), threatening to commit a crime of violence against a witness, and three counts of perjury. Doc. 462. Defendant Kirk Johnson was convicted of four counts: racketeering, racketeering conspiracy, murder in aid of racketeering, and kidnapping in aid of racketeering. Doc. 458. Co-defendant John Crawford was convicted of 14 counts, including racketeering, racketeering conspiracy, wire fraud, money laundering and perjury before a grand jury. Doc. 460. Codefendant Frank Bochicchio was convicted of 3 counts, including racketeering, racketeering conspiracy and perjury. Doc. 456. Co-defendant Juan Galvan was acquitted. Doc. 464. Petitioner, Johnson, Bochicchio, and John Crawford appealed. Docs. 561, 716, 721, 750. All convictions were affirmed by the Court of Appeals.

On June 19, 2000, Crawford was sentenced to life imprisonment and was ordered to pay restitution in the amount of $1.2 million. See Doc. 715.

IV. STANDARD OF DECISION.

To establish an ineffective assistance of counsel claim, Petitioner must show: (1) the representation was deficient, falling “below an objective standard of reasonableness”; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (both deficient performance and prejudice to defendant required to render the result of a proceeding unreliable). The Court need not evaluate both prongs of the Strickland test if the petitioner fails to establish one or the other. Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 n. 38 (9th Cir.2005).

Under the first prong, Petitioner must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct of counsel’s performance at the time.” Id. at 689, 104 S.Ct. 2052. The proper inquiry is whether, “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. The court must apply “a heavy measure of deference to counsel’s judgments,” and “must indulge a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Id. at 690-691, 104 S.Ct. 2052. “It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. at 689, 104 S.Ct. 2052. “The relevant inquiry under Strickland is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable.” Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir.1998).

A decision to waive or not pursue an issue where there is little or no likelihood of success and concentrate on other issues is indicative of competence, not ineffectiveness. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir.1989). Similarly, while a lawyer is under a duty to make reasonable investigations, counsel may make a reasonable decision that particular investigations are unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Trial counsel are also permitted wide discretion in their tactical decisions. See United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir.1986); United States v. Appoloney, 761 F.2d 520, 525 (9th Cir.1985). A court must measure counsel’s conduct in light of all the circumstances and from counsel’s perspective at the time of trial. Id. at 688-89, 104 S.Ct. 2052.

To meet the prejudice requirement, the petitioner must demonstrate that errors “actually had an adverse effect on the defense.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. “It is [also] not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. “Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” Id. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

V. ANALYSIS

A. Credibility Issue.

During the course of the federal trial, May submitted three Criminal Justice Act (“CJA”) forms, on September 30, 1998, January 23, 1999, and September 22, 1999. The amounts claimed on those forms were $29,067.76, $10,033.00, and $62,164.64, respectively, for a total of $101,265.40, as payment for May’s time (at $75.00/hour) and reimbursement for pre-trial and trial expenses. On each of those forms, May checked “No” in a box that asks: “Has the person represented paid any money to you, or to your knowledge to anyone else, in connection with the matter for which you were appointed to provide representation.” Doc. 937-2, 937-3 & 937-4.

It is undisputed that at the time May applied for CJA funds as appointed counsel, Petitioner’s son-in-law, Tom Henry, was lending May $7,500.00 a month plus additional funds to upgrade his hotel room to accommodate court files. PRX 1, May 2/20/04 Depo., at 61. May asserts that he informed the court administrator’s office of the arrangement with Henry. Id. at 61-62.

Petitioner argues that May’s “false representations” to the court on the CJA forms undermine May’s credibility. May maintains that he did not advise the court of these payments on the CJA forms because “those were loans.” May 10/31/05 Depo. 67. Henry confirms that he and May had an understanding that “May would pay [him] back after trial.” PRX 7, T. Henry Aff. May, who eventually declared bankruptcy, admits that he has never repaid any of these loans, but does not disclaim Henry’s right to collect. May 10/31/05 Depo., at 65, 67. There was no quid pro quo understanding between May and Henry that the loans would not be repaid and Henry has not said otherwise. These were not “under the table” payments for May’s representation of Crawford. May’s conduct in connection with the CJA submissions and the loans from Henry do not undermine his credibility.

B. Tactical Decisions of Counsel.

Three of Petitioner’s arguments can be described as challenges to tactical decisions made by May during the federal trial. Petitioner contends that May was ineffective because he (1) failed to call William Noel as a witness; (2) failed to offer Petitioner’s son’s school attendance records at trial; and (3) failed to object to the prosecutor’s reference to Petitioner’s son’s school attendance in closing argument.

The government maintains that these decisions were “tactical trial decisions” which, as exercises of trial strategy, cannot form the basis of an ineffective assistance of counsel claim under a long line of precedent. Mancuso v. Olivarez, 292 F.3d 939, 954 (9th Cir.2002) (failure to present evidence to a jury does not amount to ineffective assistance so long as counsel’s decision is strategically reasonable); LaGrand v. Stewart, 133 F.3d 1253, 1275 (9th Cir.1998) (failure to cross-examine witnesses does not necessarily amount to ineffective assistance so long as the decision is reasonable); Claboume v. Lewis, 64 F.3d 1373, 1383 (9th Cir.1995) (explaining that counsel’s failure to request a “voluntariness instruction” to the jury for an insanity defense amounted to a tactical decision and does not constitute ineffective assistance); United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir.1986) (counsel’s stipulation to facts unknown to him and failure to object to evidence does not necessarily demonstrate ineffective assistance); United States v. Appoloney, 761 F.2d 520, 525 (9th Cir.1985) (explaining that counsel’s failure to raise objections on some issues is not deficient performance and may be seen as reasonably strategic).

1. Testimony of William Noel.

Petitioner’s primary contention is that May’s failure to call William Noel as a witness in the federal trial was ineffective assistance. Petitioner maintains that this failure was compounded by May’s opening statement, which stated that Noel would provide critical testimony.

a. Sufficiency of Performance.

Failure to produce a witness promised in opening statement may constitute ineffective assistance of counsel, if the promise was sufficiently “specific and dramatic” and the evidence omitted would have been significant. For example, in Anderson v. Butler, 858 F.2d 16, 17 (1st Cir.1988), petitioner stabbed his estranged wife numerous times after finding her with another man. The jury had to determine whether petitioner committed first degree murder, second degree murder, or manslaughter. Id. During opening statements, Defense counsel told the jury that he would call a psychiatrist and a psychologist, whose testimony would show that defendant was “walking unconsciously toward a psychological no exit.... Without feeling, without any appreciation of what was happening ... on that night [he] was like a robot programmed on destruction.” Id. This statement was based upon the doctors’ reports possessed by counsel, who were available to testify. Id. Nevertheless, the defense rested the next day without calling the doctors. In his closing, counsel acknowledged the omission:

And I have been sitting and listening with you as the facts have been presented in this case, and I had intended to try and persuade you with fancy medical and clinical terminology. But there is no amount of psychiatric and psychological evaluations that were going to present a better picture of what you have already heard. Why should you hear this evidence again from people who presume to know Bruce Anderson better than those who really do know him and testified what they already know? At this point was it really necessary for me to try and impress you?

Id. Petitioner was convicted of first degree murder.

The First Circuit noted that, “little is more damaging than to fail to produce important evidence that had been promised in an opening”:

This would seem particularly so here when the opening was only the day before, and the jurors had been asked on the voir dire as to their acceptance of psychiatric testimony. The promise was dramatic, and the indicated testimony strikingly significant. The first thing that the ultimately disappointed jurors would believe, in the absence of some other explanation, would be that the doctors were unwilling, viz., unable, to live up to their billing. This they would not forget.

Id. Such circumstances were found to be “prejudicial as a matter of law.” Id. at 18.

Similarly, in Ouber v. Guarino, 293 F.3d 19 (1st Cir.2002), counsel promised four times in his opening statement that defendant would testify, and stated that defendant’s testimony would be central to the case:

The case is going to come down to what happened in that car and what your findings are as you listen to the credibility and the testimony of Todd Shea versus what your findings are as you listen to the testimony of [defendant] Barbara Ouber.

Id. at 22. On the evening of the first day of trial, counsel persuaded the defendant not to testify. Id. at 24. The First Circuit described the error attributed to counsel as consisting of “two inextricably intertwined events: the attorney’s initial decision to present the petitioner’s testimony as the centerpiece of the defense (and his serial announcement of that fact to the jury in his opening statement) in conjunction with his subsequent decision to advise the petitioner against testifying.” Id. at 27.

The First Circuit rejected the government’s argument that defense counsel’s actions were reasonable strategic choices:

Under ordinary circumstances, that is true. It is easy to imagine that, on the eve of trial, a thoughtful lawyer may remain unsure as to whether to call the defendant as a witness. If such uncertainty exists, however, it is an abecedarian principle that the lawyer must exercise some degree of circumspection. Had the petitioner’s counsel temporized — he was under no obligation to make an opening statement at all, much less to open before the prosecution presented its case, and, even if he chose to open, he most assuredly did not have to commit to calling his client as a witness-this would be a different case. See Phoenix v. Matesanz, 233 F.3d 77, 85 (1st Cir.2000) (finding no ineffectiveness where, in the absence of an express promise, counsel chose not to call a potentially important witness).

Here, however, the circumstances were far from ordinary. The petitioner’s counsel elected to make his opening statement at the earliest possible time. He did not hedge his bets, but, rather, acted as if he had no doubt about whether his client should testify. In the course of his opening statement, he promised, over and over, that the petitioner would testify and exhorted the jurors to draw their ultimate conclusions based on her credibility. In fine, the lawyer structured the entire defense around the prospect of the petitioner’s testimony.

In the end, however, the petitioner’s testimony was not forthcoming. Despite the fact that the lawyer had called the petitioner to the stand in both prior trials, he did a complete about-face. The lawyer states in his affidavit that he only realized that keeping his client off the witness stand was an option after the first day of trial. This realization came much too late. Indeed, the attorney’s delayed reaction is sharply reminiscent of the situation in Anderson, in which we observed that even “if it was ... wise [not to have the witness testify] because of the damaging collateral evidence, it was inexcusable to have given the matter so little thought at the outset as to have made the opening promise.”

Id. at 28-29. “Taken alone, each of [counsel’s] decisions,” emphasizing defendant’s testimony during the opening statement and convincing defendant not to testify, “may have fallen within the broad universe of acceptable professional judgments. Taken together, however, they are indefensible.” Id. at 27.

The Seventh Circuit found ineffective assistance in Harris v. Reed, 894 F.2d 871, 873-74 (7th Cir.1990), a murder case in which two eye witnesses identified someone other than defendant running away from the scene of the crime. That individual became the prime suspect until more than a month after the shooting, when another informant indicated that he heard the gunshot and then saw the defendant run to his car, get inside, and drive away. Id. at 873. This informant was the only witness connecting defendant to the murder scene. Defense counsel told the jury about the eye witnesses and the other suspect during opening statement, but, without having interviewed the eye-witnesses or consulting with defendant, counsel decided not to call either eye witnesses during the trial. Id. at 874.

The Seventh Circuit found that the eye witnesses’ impartial testimony would have been credible and significant, in that it would have discredited the informant’s version of the event. Id. at 877-78. Counsel offered no strategic reasons for not calling these witnesses. Id. at 878. Under the circumstances, the Seventh Circuit concluded that “counsel’s overall performance, including his decision not to put on any witnesses in support of a viable theory of defense, falls outside the wide range of professionally competent assistance.” Id. Hams found prejudice in counsel’s decision to rest without presenting the eye witnesses to support the alternative suspect theory. This “left the jury free to believe [the informant’s] account of the incident as the only account. In fact, counsel’s opening primed the jury to hear a different version of the incident. When counsel failed to produce the witnesses to support his version, the jury likely concluded that counsel could not live up to the claims made in the opening.” Id. at 879.

In contrast, where the promise is more general in nature, and/or where the testimony to be provided would not be significant or was elicited through other means, courts may defer to counsel’s reasonable decision to change course. For example, in United States v. McGill, 11 F.3d 223, 227 (1st Cir.1993), defense counsel told the jury during his opening that he would call a firearms expert. Counsel later decided not to call the expert after learning he could be easily impeached. Id. In addition, counsel “succeeded, by dint of skillful cross-examination of the prosecution’s firearms expert, in eliciting much the same opinion evidence that he hoped to establish through his own expert.” Id.; see also Yeboah-Sefah, v. Ficco, 556 F.3d 53, 77-78 (1st Cir.2009) (no ineffective assistance where counsel’s general promise that jury would hear from “psychologists and psychiatrists ... about the medical affects [sic] of [petitioner’s] medication” was not an explicit promise to produce a particular witness, and psychologist and psychiatrist did testify (for the government) about petitioner’s medications and his mental capacity at the time of the crime); United States ex rel. Schlager v. Washington, 887 F.Supp. 1019, 1026-27 (N.D.Ill.1995), aff'd, 113 F.3d 763 (7th Cir.1997) (even though counsel indicated during opening that defendant would testify, counsel and client’s reasonable strategic decision to withhold such testimony did not amount to ineffective assistance).

Whether May acted appropriately is evaluated by the nature of the promise(s) made during his opening statement. Crawford’s principal defenses to the murder charge were (1) that Crawford had an alibi and (2) that a key government witness, Mike Beckcom, framed Crawford. PRX 23, M. Crawford’s Opening Statement, at 258:23-259:4 (“Mark Crawford couldn’t have killed Nick Brueggen because he wasn’t on Jacoby Lane.... In addition to that, we are going to show you that Mike Beckcom is part of a scheme to frame Mark Crawford.”). In opening, May discussed William Noel’s connection to these defenses:

What else are we going to show you? Well, very important testimony is going to come from a man named William Noel, and this is a person that was arrested the same night the body of Nick Brueggen was found. How does this tie in? When William Noel was arrested, he had with him a briefcase and in the briefcase was Nick Brueggen’s wallet, his checkbook, a lot of personal items and all the things that were supposedly on Nick Brueggen when he would have been murdered. It’s all in William Noel’s possession. William Noel is arrested after he excites the ire of a neighborhood dog.

William Noel an hour earlier had gone to the police station and asked, ‘Where is Mark Crawford’s house, how do I get there?’ Noel is given instructions because, remember, Mark Crawford was the mayor and the police would have known where he lived. He’s headed in the direction of Mark Crawford’s house. He’s got a briefcase with him with all of Nick Brueggen’s possessions in it. And when William Noel gets arrested, he’s questioned by police. The police let him go as a result of his agreement to cooperate against Mark Crawford.

His first story he tells he recants, then changes the story again. He gets called as a witness by Mark Crawford, by the state once, and he’s called on the second occasion. On the second occasion that Mr. Noel is called as a witness, and Mr. Noel will be here as a witness in court, Noel will tell you that the reason that he had the briefcase that night is because Mike Beckcom called him on the phone, told him to come over there and get the briefcase and told him to go plant the briefcase at Mark Crawford’s old house so that whenever the body is recovered — remember the body is getting recovered on this same night, the news media is already out there, it’s already on the news — Mr. Noel — or at least you could drive by and see that there is news media and everything, Mr. Noel, pursuant to Mike Beckcom’s instructions, was taking the briefcase over to Mark Crawford’s house to plant the last piece of evidence to put together the murder frame on Mark Crawford.

Noel testifies that, in fact, Beckcom planned to kill Nick Brueggen and we can ask, you know — and William Noel, incidentally, is no angel. He’s [sic] certainly is an ex convict. He’s currently in prison for a terrible rape that he committed after he was released by law enforcement and after he agreed to testify against Mr. Crawford, but he has important testimony about his involvement with Mark Crawford. So when I say Mark Crawford was framed, at least one of the witnesses will testify that he participated in that conspiracy to frame him.

Id. at 262:14-264:8. This is a specific, and lengthy description that Noel would be a witness. It suggests that Noel would testify in support of the defense theory that Mark Crawford was framed for the murder. Compare Anderson, 858 F.2d at 17 (“dramatic” promise of “strikingly significant” evidence) with McAleese v. Mazurkiewicz, 1 F.3d 159 (3rd Cir.1993) (opening was “carefully worded recitation of evidence the defendant did produce”) (emphasis added).

Nevertheless, May did not subpoena Noel, who never testified in the federal trial. Why, then, did May mention Noel in his opening statement? As a general rule, failing to call a witness will not amount to ineffective assistance of counsel if the decision is a reasonable tactical choice based on adequate inquiry. Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir.1997) (failure to call three witnesses who could have related mitigating sentencing evidence was a reasonable tactical decision; counsel reasonably believed testimony could backfire). However, an attorney’s basis for not calling a witness can be unreasonable if it is not supported by objective evidence. Alcala v. Woodford, 334 F.3d 862, 871 (9th Cir.2003).

May maintains that he expected Noel would be a government witness. PRX 1, May 2/20/04 Depo., at 49-50. May also explains that he made up his mind not to call Noel after the conclusion of Mark Crawford’s San Antonio trial. PRX 2, May 11/31/05 Depo., at 98. However, objective evidence contradicts May’s asserted belief that the government would call Noel as a witness. Noel was not on the government’s pretrial witne