SMITH, Chief Judge.
On July 19, 2012, a jury found Robert Ford guilty of kidnapping but acquitted him on the charge of sexual abuse of an incapacitated person. The district court then sentenced Ford to 36 months imprisonment. Ford appealed that conviction, and we affirmed. See United States v. Ford , 726 F.3d 1028, 1029 (8th Cir. 2013). Ford then moved to vacate, set aside, or correct his sentence in the district court. See 28 U.S.C. § 2255. Ford claimed ineffective assistance of counsel based on his counsels alleged failure to impeach his accusers credibility. The district court denied Fords motion without holding an evidentiary hearing.
Ford now appeals that denial, arguing that the district court erred in denying his § 2255 motion and declining to hold an evidentiary hearing. For the reasons stated below, we affirm.
I. Background
In December 2011, Ford was charged with sexually assaulting and kidnapping Christina Weston. Weston claimed Ford assaulted her while she was sleeping and then confined her in her bedroom to prevent her from reporting the assault.
The court appointed Stacy Kooistra as Fords counsel. Kooistra represented Ford through the end of his jury trial. In preparation for trial, Kooistra sought and secured a court-appointed investigator, Tim Mulloy, and two court-appointed medical experts. Kooistra also successfully subpoenaed phone records to assist in establishing a timeline for relevant events.
At trial, the government called Eric Sherman and Michelle Red Earth as witnesses. Sherman and Red Earth had been at Westons house drinking with her and Ford the night before the alleged assault. Both also slept at Westons house that night.
Sherman testified that he and Red Earth arose around 11 or 11:30 a.m. on the morning of the alleged assault. About 15 or 20 minutes after waking, Sherman heard noise coming from Westons bedroom. He went to investigate, but Ford stepped out of the room just as Sherman approached and closed the door behind him. Ford told Sherman that Weston was having a fit, an attack and that he had better go check on her. Trial Tr. at 41, United States v. Ford , No. 4:11-cr-40116-KES-1 (D.S.D. October 25, 2012), ECF No. 87. Sherman described Ford as upset. When Sherman entered the room, he found Weston on the floor sobbing, with red marks on her arms. Id. When asked what was wrong, Weston told Sherman that f***ing Bob and pointed towards the door. Id. at 42.
Red Earth testified that she got up between 8 and 9 a.m. to go buy breakfast supplies and then returned to Westons house. She testified to hearing a cry, something ... horrible. ... like a shattered soul coming from Westons bedroom sometime after returning. Id. at 56. Red Earth then found Weston on her bedroom floor in a heap, crying, trembling, broken. Id. at 56-57. Weston told Red Earth that Ford had done wrong. Id. at 57. Red Earth testified Weston had marks on her arms and legs, which had not been present the night before.
Weston also testified. Weston explained that she and Ford had once dated, but they had stopped in 2008. Ford lost his home in the spring of 2011, and Weston allowed him to live in her basement while he searched for new accommodations; however, they did not rekindle their relationship during this time. Just as Sherman and Red Earth had, Weston described the evening preceding the assault as involving heavy alcohol consumption. At trial, she testified to awakening to pain in her genital area between 7 and 9 a.m. the next morning and to seeing Ford scrambling to get [her] bottoms up and backing away. Id. at 79. Weston claimed that she started screaming and tried to leave the room, but Ford blocked her by standing in front of the door and putting his leg up. She claimed that he also took her cell phone when he left. She then testified she was unable to leave the room until Sherman arrived. Weston also identified photos of the marks on her arms and legs; she said they were bruises that Ford caused.
When Kooistra cross-examined Weston, he highlighted inconsistencies between her testimony and that of the other witnesses. Weston alleged the assault and confinement occurred sometime between 7 and 9 a.m. In contrast, Shermans testimony suggested a later time frame. Kooistra also highlighted inconsistencies in Westons own testimony. Although Weston initially stated she saw no clock in her room, she later testified to seeing a clock. She also initially stated she awakened several times during the night preceding the alleged assault. But she later testified to being so incapacitated by alcohol and Ambien that she did not wake up when Ford had sex with her. Kooistra also exposed inconsistencies in her testimony about the amount of beer she consumed that night and the nature of Fords sexual acts.
To conclude its case, the government called a forensic scientist, who testified to the presence of Fords sperm in Westons genital area, and a physicians assistant, who testified to the freshness of the bruising on Westons arms and legs. Finally, the government called the FBI agent who had interviewed Weston and Ford following Westons allegations. The agent testified to his conversations with the victim and suspect.
After the close of the governments case, Kooistra initiated Fords defense by calling two expert witnesses: Drs. Eric Kutscher and Elizabeth Dimitrievich. Dr. Kutscher testified as an expert in pharmacology. His testimony cast doubt on Westons claim that she had been incapacitated during her sexual encounter with Ford by the pills and alcohol consumed the evening prior; Dr. Kutscher concluded Weston would have become more sober by dawn. Dr. Dimitrievich testified as an expect in gynecology.
Her testimony called into question Westons description of Fords sexual acts. Dr. Dimitrievich concluded the condition of Westons genital area was inconsistent with the type of acts Weston claimed Ford had perpetrated.
Finally, Kooistra called Ford to testify on his own behalf. Ford averred that he and Weston had consensual sex around 10:30 a.m. of the morning in question. He testified that after their encounter, they chatted and eventually discussed his upcoming testimony against her in a tribal assault case; Ford had been scheduled to testify against Weston for assaulting him on a prior occasion. Ford had previously obtained permission from the court to ask questions related to the assault charges against Weston. Ford claimed that, after they discussed his upcoming testimony that morning, Weston began screaming at him. Ford alleged that he called Westons mother after Weston began asking for her. Ford denied confining Weston to her bedroom, bruising her, or taking her cell phone.
The jury returned a verdict of not guilty on the charge of sexual assault of an incapacitated person and a verdict of guilty on the charge of kidnapping. The district court then sentenced Ford to 36 months imprisonment, a downward variance from the Guidelines range of 121 to 151 months. Ford appealed his sentence, arguing that he could not be convicted of kidnapping since he had been acquitted of sexual assault. He also contested the district courts jury instructions, as well as its denial of his motions for judgment of acquittal and for a new trial. We affirmed Fords sentence. Ford , 726 F.3d at 1029.
In October 2015, Ford filed for relief under 18 U.S.C. § 2255. Ford claimed ineffective assistance of counsel based on Kooistras alleged failure to impeach Westons credibility. The district court denied Fords motion without holding an evidentiary hearing. Ford now appeals that denial, arguing that the district court erred in denying his § 2255 motion and in declining to hold an evidentiary hearing.
II. Discussion
A. Ineffective Assistance of Counsel
On appeal, Fords principal argument is that Kooistra rendered ineffective assistance of counsel at trial in violation of the Sixth Amendment. Ford argues the district court thus erred in denying his § 2255 motion to vacate, set aside, or correct his sentence. Ford specifically alleges Kooistra was ineffective in failing to thoroughly investigate Weston and in failing to effectively impeach her. Fords argument fails.
We review the merits of Fords ineffective-assistance claim de novo. Adams v. United States , 869 F.3d 633, 634 (8th Cir. 2017). We do so mindful of the Supreme Courts directive that [j]udicial scrutiny of counsels performance must be highly deferential. Strickland v. Washington , 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
For Ford to prevail on his ineffective-assistance claim, he must satisfy both prongs of the two-part test announced by the Supreme Court in Strickland . Id . at 687, 104 S.Ct. 2052. First, Ford must show that, with respect to each instance of alleged ineffectiveness, Kooistra made errors so serious that counsel was not functioning as the counsel guaranteed [Ford] by the Sixth Amendment. Id. Generally, counsel enjoys a strong presumption that [his] conduct falls within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. Furthermore, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. (internal quotation omitted).
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.
Id. at 690-91, 104 S.Ct. 2052.
Second, even if Ford satisfies Strickland s first prong, counsels errors would only warrant reversal if Ford could prove that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Id. at 693, 104 S.Ct. 2052. Rather, [t]he defendant must show that there is a reasonable probability that, but for counsels 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.
Because the defendant must satisfy both prongs of the Strickland test to succeed on an ineffective-assistance claim, a court may decide such a claim by addressing either prong. [T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. Id. at 697, 104 S.Ct. 2052.
In its order, the district court focused on the prejudice prong. The court held that Ford had not been prejudiced by Kooistras alleged errors because the jury had sufficient objective evidence of guilt before it to convict Ford, irrespective of Westons supposed character for dishonesty. For support, the court highlighted the considerable evidence of guilt-apart from Westons testimony-offered at trial. The court noted the documented bruising on Westons arms and legs. It noted Shermans, Red Earths, and the physicians assistants testimony that Westons bruising appeared fresh on the morning of the incident. It cited Sherman and Red Earths testimony about a commotion in Westons bedroom around the time of the alleged assault. And, it construed the record of a cell phone call by Ford to Westons mother as supporting Westons claim that Ford took her phone. We agree with the district court that the jury had sufficient objective evidence of guilt to convict Ford.
Ford reads the district courts opinion as impliedly conclud[ing], for purposes of its analysis, that trial counsel was ineffective but no harm, no foul. Appellants Br. at 10. In fact, the district court made no such finding. The magistrate judges report and recommendation, which the district court adopted in full, described Kooistras investigation as well above the standard of performance required by the Sixth Amendment, and his impeachment of Weston as not deficient. R. & R. at 32, 37, Ford v. United States , 4:15-cv-04152-KES (D.S.D. Aug. 18, 2016), ECF No. 28. On this record, we conclude that Kooistra was not ineffective in his representation of Ford.
1. Failure to Investigate
Ford alleges Kooistra rendered ineffective assistance by failing to thoroughly investigate Weston. Ford claims Kooistra would have discovered additional evidence to impeach Westons credibility had he performed a more thorough investigation. Specifically, Ford claims Kooistra would have identified as witnesses (1) Nathan Sunderland, an ex-boyfriend who had obtained a protection order against Weston; (2) Erika Dewald-Hoss, Westons ex-husbands wife, who considered Weston dishonest; (3) Lee Hoss, Westons ex-husband, who had allegedly been the subject of false allegations by Weston; and (4) Kent Bucher, an ex-boyfriend who also allegedly had knowledge of Westons dishonest character. Ford argues Kooistra could have used these witnesses both to provide testimony regarding Westons character for untruthfulness and to provide impeachment evidence for Westons cross-examination.
Though Ford characterizes Kooistras investigation as lacking, the record actually shows that Kooistra dedicated substantial time and resources to researching Westons background. Kooistra met with a tribal prosecutor to obtain information about Weston. Kooistra also requested and obtained a court-qualified investigator, Mulloy, to assist with trial preparation. Shortly thereafter, Kooistra asked Ford to be ready to brief Mulloy with all he knew about Weston. Kooistra spent several hours both on the phone and in-person discussing Fords case with Mulloy. Kooistra specifically directed Mulloy to interview the tribal court clerk, Kristi Bietz, and any family members or third parties with knowledge of the relationship between Weston and Ford. After a conversation with Fords former attorney, Lori Sanford, Kooistra also directed Mulloy to interview Hoss.
Sanford described Weston as a partier who liked to drink and argue, but she directed Mulloy to the tribal court offices for actual records. As a result of his interview with Bietz, Mulloy determined that he and Kooistra had all the available files on Weston. Bietz communicated to Mulloy that files concerning protection orders against Weston by Hoss and Dewald-Hoss have been dismissed, were put on hold for one year, and were not reinstated. Interview Notes at 1-2, United States v. Ford , 4:15-cv-04152-KES (D.S.D. Oct. 1, 2015), ECF No. 5-4. Kooistra stated that he directed Mulloy to interview Hoss, but Mulloy provided him with no useful information concerning Hoss. Mulloys report on Westons files contained no mention of a protection order by Sunderland against Weston. Kooistra and Mulloy found no evidence of Sunderlands protection order against Weston before trial. Later investigation uncovered a protection order filed in Minnestota state court. Nevertheless, we cannot say that Kooistra unreasonably failed to discover this information.
Reasonable professional judgment is not infallible. Failure to discover a particular piece of marginally helpful information does not render legal representation constitutionally deficient. See Strickland , 466 U.S. at 690-91, 104 S.Ct. 2052. Kooistra and Mulloy conducted a thorough investigation, and their imperfect investigation has not been shown to be ineffective representation. [A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsels judgments. Id. at 691, 104 S.Ct. 2052.
In total, Mulloy conducted 28 hours of investigative work in connection with Fords case-falling just shy of spending his entire investigative budget. Kooistra averred that Ford was aware of the information Mulloy had obtained (and not obtained), and Ford never expressed that they had avenues left unconsidered or unexplored. Aff. of Stacy Kooistra at 7, United States v. Ford , 4:15-cv-04152-KES (D.S.D. Dec. 21, 2015), ECF No. 16.
Kooistra and Mulloy interviewed a variety of individuals connected to Weston and Ford, but they ultimately relied on the files the tribal court provided. Kooistra admitted he would have liked to have had more information about Weston to assist in Fords defense. But we cannot say that he performed in an objectively unreasonable manner in relying primarily on the tribal court records.
Kooistra and Mulloy dedicated a significant amount of time and money to investigating Weston. Indeed, Ford himself essentially acknowledged this when he wrote to Kooistra after trial: Want to take a moment here to say thank you. Youve worked very hard on my case and I am very grateful. Thanks for getting the first charge acquitted and hopefully we will get the 2nd charge acquitted also. ... Youve gotten me this far and its a lot farther than everyone expected. Letter from Ford to Kooistra at 1, United States v. Ford , 4:15-cv-04152-KES (D.S.D. Dec. 21, 2015), ECF No. 16-1.
We conclude that Kooistras investigation of Weston demonstrated reasonable professional judgment and thus was not constitutionally deficient.
2. Failure to Impeach
Because Kooistra conducted a reasonable investigation, Ford must clear a high bar to successfully challenge the strategic litigation decisions derived from that investigation. Ford claims Kooistra rendered ineffective assistance by failing to effectively impeach Westons credibility. Ford specifically argues Kooistra should have cross-examined Weston about allegations made by Westons ex-husband, her ex-husbands wife, and an ex-boyfriend. He also implies Kooistra should have called these individuals as character witnesses against Weston. Ford further argues Kooistra should have called the tribal court clerk to testify about pending assault charges against Weston.
a. Failure to Sufficiently Cross-Examine
[T]he Eighth Circuit has found constitutionally deficient performance of trial counsel based on ineffective cross-examination where counsel allowed inadmissible devastating evidence before the jury or when counsel failed to cross-examine a witness who made grossly inconsistent prior statements. United States v. Orr , 636 F.3d 944, 952 (8th Cir. 2011) (internal quotation omitted). This is not such a case.
Kooistra cross-examined Weston extensively, but Ford argues Kooistra should have cross-examined Weston specifically about her relationship with Dewald-Hoss based on Dewald-Hosss letter to the court in which she described Weston as a liar and a gossip. Dewald-Hosss letter references a protection order against Weston and alleges Weston falsely accused Dewald-Hoss and her husband of kidnapping Westons children. Ford contends Kooistras failure to highlight the letter rendered representation ineffective. We disagree. Kooistra possessed the professional discretion to determine the strategic value of using the letter for impeachment. In his affidavit, Kooistra explained that because he found no record of a legal action involving Dewald-Hoss on file in the tribal court, he could not accurately evaluate the usefulness of raising the issue at trial. Mulloys investigation of Dewald-Hosss husband likewise yielded no useable information on the subject.
We cannot say Kooistras decision not to rely on an unsworn letter from Westons ex-husbands new wife for impeachment purposes was unreasonable. Because Kooistra thoroughly investigated Westons relationship with Hoss and Dewald-Hoss, his strategic choices ... are virtually unchallengeable. Strickland , 466 U.S. at 690, 104 S.Ct. 2052. Moreover, because [w]e generally entrust cross-examination techniques, like other matters of trial strategy, to the professional discretion of counsel, United States v. Villalpando , 259 F.3d 934, 939 (8th Cir. 2001), we cannot say Kooistra acted unreasonably in declining to cross-examine Weston about the allegations in Dewald-Hosss letter.
A similar logic applies to the alleged protection order by Sunderland against Weston. Mulloys interview with Bietz, the tribal court clerk, yielded no record of an action involving Sunderland. Kooistra therefore could have reasonably concluded its impeachment value was negligible. The order of protection that Sunderland obtained was actually a mutual restraining order, meaning the court restrained both Weston and Sunderland. Evidence of such an order would not have meaningfully assisted Kooistra in depicting Weston as dishonest.
Lastly, by focusing on Kooistras alleged missteps on cross-examination, Ford overly discounts Kooistras considerable success. During his cross-examination of Weston, Kooistra highlighted multiple inconsistencies in her testimony about the alleged sexual assault and kidnapping. For example, Kooistra highlighted inconsistencies in Westons and Shermans testimony about the timing of the events in question. He also highlighted inconsistencies in Westons testimony about when and how she received the bruises on her arms and legs; her and Fords living arrangements; the nature of Fords sexual advances; and the amount of alcohol consumed during the evening with Ford, Sherman, and Red Earth. Kooistras cross-examination elicited testimony that significantly undermined Westons credibility. Ultimately, taking into account all the testimony, the jury acquitted Ford of the sexual assault charges.
Accordingly, we reject Fords claim that Kooistras cross-examination of Weston amounted to ineffective assistance of counsel.
b. Failure to Call Witnesses
The decision not to call a witness is a virtually unchallengeable decision of trial strategy. United States v. Staples , 410 F.3d 484, 488 (8th Cir. 2005) (internal quotations omitted). Nevertheless, Ford argues Kooistra was ineffective in not calling Bietz, the tribal court clerk, to testify to the tribal charges against Weston for assaulting Ford. Ford also argues Kooistra was ineffective because, although [Weston] had a reputation in the community for being untruthful and specific witnesses were identified who could have impeached her credibility, not a single impeachment witness was called to testify. Appellants Br. at 23.
Ford argues that evidence of the tribal charges against Weston would have demonstrated that Weston had a motive to fabricate retaliatory charges against him. Kooistra in fact elicited some information about the charges and Fords scheduled testimony against Weston during his direct examination of Ford. Kooistra acted within his discretion in attempting to introduce evidence of Fords charges against Weston through Fords direct testimony rather than by calling Bietz. We therefore cannot say Kooistra was unreasonable in deciding not to call Bietz as a witness. Kooistras strategy for eliciting testimony about Fords assault allegations against Weston may not have been ideal. However, our law does not call for an ideal defense: it calls for a reasonable defense. See Staples , 410 F.3d at 488.
Ford further suggests that, absent calling Bietz, Kooistra should have pushed him harder for details about Westons assault charges and his scheduled testimony against her; however, Kooistra may reasonably have determined that pushing Ford-his own witness-too hard on the stand would have undermined his own case. Ultimately, the jury nonetheless learned of the charges during Kooistras direct examination of Ford, as well as during the governments cross-examination of Ford.
Kooistras decision not to call Dewald-Hoss, Hoss, or Sunderland as potential character witnesses also was within the discretion of counsel, and his decision not to do so was not ineffective assistance. We afford counsels decision in such matters some deference because there is considerable risk inherent in calling any witness[;] if the witness does not hold up well on cross-examination, the jurors might draw unfavorable inferences against the party who called him or her. Id. at 489.
Calling Dewald-Hoss and Hoss as witnesses clearly could have presented such a risk. A jury may not have considered Westons ex-husband and her ex-husbands new wife-veterans of a contentious custody battle involving Westons children-as reliable witnesses. Even if viewed as a failure to call two potentially helpful witnesses, such a failure does not necessarily amount to ineffective representation. See English v. United States , 998 F.2d 609, 613 (8th Cir. 1993).
Similarly, even if Kooistra had identified Sunderland as a potential witness before trial, we cannot say declining to call him as a witness would have amounted to ineffective assistance. Sunderland and Westons mutual protection order indicates that both parties acted aggressively toward the other. [B]ecause [Sunderlands] testimony was potentially damaging and would not have exonerated [Ford], counsels decision not to call [him] to testify at [Fords] trial [would] not [have been] objectively unreasonable. Orr , 636 F.3d at 956 (quoting United States v. Watkins , 486 F.3d 458, 465 (8th Cir. 2007), vacated on other grounds , 552 U.S. 1091, 128 S.Ct. 906, 169 L.Ed.2d 719 (2008) ).
Fords criticism of Kooistras witness selection likewise unreasonably discounts Kooistras considerable success at trial. Kooistra called two impeaching witnesses, Drs. Kutscher and Dimitrievich, who offered medical testimony undercutting Westons version of events. Dr. Kutschers testimony mitigated Westons claim that drugs and alcohol incapacitated her during her sexual encounter with Ford, and Dr. Dimitrievichs testimony undermined Westons claim that Ford had anally penetrated her.
Kooistra explains in his affidavit that a strategically effective way to attack Ms. Westons credibility would be to engage science, as such would disprove Ms. Westons version of the timeline and series of events. Kooistra Aff. at 2. Kooistras intent and hope at that stage of trial was that, considering the entirety of the testimony, Ms. Westons credibility would have been sufficiently impeached to ensure Defendants testimony and version of events were considered the most reliable. Id. at 7 n. 2.
Kooistra did not act unreasonably in concluding that the best way to discredit an alleged sexual assault victim was through scientific evidence and expert testimony rather than through attempted character demolition. Kooistra provided reasonable representation.
B. Failure to Hold an Evidentiary Hearing
Ford maintains the district court erred in declining to hold an evidentiary hearing on his ineffective-assistance claim.
We review for abuse of discretion the district courts denial of [Fords] § 2255 motion without an evidentiary hearing .... Adams , 869 F.3d at 634. A § 2255 motion can be dismissed without a hearing if (1) the petitioners 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 conclusions rather than statements of fact. United States v. Regenos , 405 F.3d 691, 694 (8th Cir. 2005) (cleaned up).
Because the record sufficiently demonstrates that Fords counsel was not ineffective, the district court did not err in declining to hold an evidentiary hearing.
III. Conclusion
Accordingly, we affirm the district courts decision.
The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota.