United States v. Newton

                    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this opinion should not be published and is not precedent except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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