UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41452
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES BURDETTE NEWTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:97-CV-101)
April 12, 1999
Before EMILIO M. GARZA, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
James Burdette Newton (“Newton”), a federal prisoner
proceeding pro se, appeals the denial of his motion to vacate, set
aside or correct his sentence filed pursuant to 28 U.S.C. § 2255.
We granted Newton a certificate of appealability to consider
whether Newton's trial counsel was ineffective for opening the door
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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to admission of Newton's prior conviction for armed robbery. We
affirm.
Newton is serving a 78 month sentence for conspiracy to
manufacture and possess with intent to distribute marijuana.
Evidence at the jury trial of Newton and his co-defendants
established that there was an extensive marijuana cultivation and
distribution conspiracy, wherein large amounts of marijuana were
grown in Texas and Oklahoma and distributed primarily in
California. Newton's role in the conspiracy included purchasing
real estate for one of the marijuana farms and deeding it to the
conspiracy's leader, as well as setting up a mobile home and
utilities on that farm.
During cross-examination of a government witness, Newton's
trial counsel asked if Newton had always made an above-average
honest living. The prosecutor took the witness on voir dire and
elicited that the witness knew that Newton had been previously
convicted of armed robbery. The district court allowed that
evidence to be presented to the jury. Newton argues that his
counsel was ineffective because he opened the door to the
introduction of this prior conviction.
To obtain § 2255 relief based on ineffective assistance of
counsel, the defendant must prove that counsel's performance was
both deficient and prejudicial to him. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). “[C]ounsel is strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
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judgment.” Id. at 690. To establish prejudice, the defendant must
show that counsel's errors were serious enough to “render[] the
result of the trial unreliable or the proceeding fundamentally
unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
The district court found that trial counsel was not deficient
for trying to introduce evidence of Newton's good character. We
agree. Apparently, Newton's theory of defense was that he was an
honest businessman who bought the real estate in question without
any involvement with the production of marijuana. The witness
persisted in his testimony that Newton made an above-average,
honest living, even after the government introduced the prior
conviction. While in hindsight this may not have been an effective
strategy, trial counsel's tactical decision to risk the jury
knowing the whole story in order to flesh out Newton's defense
theory did not deprive Newton of his constitutional right to
assistance of counsel. See Emery v. Johnson, 139 F.3d 191, 197
(5th Cir. 1997)(holding that the Sixth Amendment does not guarantee
criminal defendants the right to error-free representation).
Further, Newton's contention that, had his counsel
investigated, he would have discovered that the prior armed robbery
conviction was uncounseled, and thus inadmissible, is unsupported
by any evidence in the record before us.
For the foregoing reasons, we affirm the district court's
denial of Newton's § 2255 motion.
AFFIRMED.
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