Everett v. United States

United States Court of Appeals Fifth Circuit F I L E D In the August 9, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 04-41145 _______________ BRUCE GALEN EVERETT Plaintiff-Appellant, VERSUS UNITED STATES OF AMERICA, Defendant-Appellee. ____________________________________ Appeal from the United States District Court for the Eastern District of Texas m 4:01-CV-324 _____________________________________ Before SMITH, GARZA, and CLEMENT, ground of ineffective assistance of counsel, his Circuit Judges. conviction of and sentence for being a felon in possession of ammunition in violation of 18 JERRY E. SMITH, Circuit Judge:* U.S.C. § 922(g)(1). We affirm. Bruce Everett appeals the denial of his 28 I. U.S.C. § 2255 motion to vacate, on the A. On October 23, 1998, police in Plano, Tex- as, received a call from JoAnna Everett re- * Pursuant to 5TH CIR. R. 47.5, the court has de- garding a domestic disturbance at her house. termined that this opinion should not be published When the police, including Officer Jeff Rich, and is not precedent except under the limited arrived, they found Mrs. Everett in her front circumstances set forth in 5TH CIR. R. 47.5.4. yard, frantic and obviously upset. She told the violation of federal law. While he was in the officers that her husband, Bruce, was acting in process of making the arrest, Everett said to a violent and paranoid manner and that she Patterson, “[h]ypothetically, I didn’t realize feared he was “reverting to his old ways,” that a convicted felon couldn’t possess ammu- which, according to Mrs. Everett, included be- nition.” havior resulting in a conviction for bank rob- bery. B. Everett was indicted on two counts of be- With regard to the specific conduct that ing a felon in possession of ammunition in precipitated her call to the police, Mrs. Everett violation of 18 U.S.C. § 922(g)(1)SSone count informed the officers that her husband had im- for the loose ammunition, and one count for prisoned her in the house by screwing the door the three boxes of 9mm ammunition. To shut, had thrown a vacuum cleaner through prove a violation of § 922(g)(1) the govern- their television, and had pushed a five-gallon ment must show that the defendant (1) is a water bottle into her. An examination of the convicted felon (2) who knowingly possessed physical state of the home confirmed these ammunition and (3) that the ammunition trav- claims. The police arrested Everett for family eled in or affected interstate commerce. See violence. United States v. Hinojosa, 349 F.3d 200, 203 (5th Cir. 2003) Mrs. Everett also told the officers that her husband kept a pistol and ammunition in the At trial, a stipulation, signed by Everett, house. After Everett had been taken to the was entered and read to the jury, stating that police station, Rich, in Mrs. Everett’s presence and with her consent, searched a closet and [d]efendant Bruce Galen Everett was con- chest of drawers in the master bedroom, look- victed in the Western District of Oklahoma ing for the pistol. Mrs. Everett identified the on May 7, 1982, in cause No. CR-82-66T, chest as belonging to her husband, and it was for aggravated bank robbery, in violation of full of male clothing. In the top drawer Rich Title 18, United States Code, Sections discovered loose rounds of ammunition. 2113(a) and (d), and sentenced to twenty- five (25) years confinement. Rich was contacted by Joe Patterson, a special agent with the Bureau of Alcohol, Expert witnesses established that the ammuni- Tobacco, and Firearms. Based on what Rich tion found in Everett’s chest of drawers had told him about the search, Patterson sought traveled in or affected interstate commerce. and obtained a warrant to conduct a further search of the residence for firearms and am- On the only truly contested element, which munition. In executing the warrant, agents was Everett’s knowing possession of the am- discovered the same loose ammunition that munition, Rich and others testified as to the Rich had seen and three boxes of 9mm ammu- results of the two searches, the comments nition hidden in the bottom drawer of the same made by Mrs. Everett regarding her husband’s chest. No firearms were found. past and his ownership of the ammunition, and the statement by Everett at the time of his Patterson arrested Everett on charges of arrest. Mrs. Everett testified for the defense. being a felon in possession of ammunition in She recanted her prior statements regarding 2 the ownership of the ammunition and stated respect to his claim of ineffective assistance of that the loose ammunition belonged to her and counsel. Everett now appeals on the basis of that the three boxes of ammunition belonged that issue. to Chris Odom, one of Everett’s employees.1 Mrs. Everett explained her prior inconsistent II. statements to the police by testifying that, at “We review a district court’s conclusions the time, she wanted her husband to be with regard to a petitioner’s § 2255 claim of “locked up” because she was concerned about ineffective assistance of counsel de novo. We his mental health. review § 2255 findings of fact for clear error.” United States v. Molina-Uribe, 429 F.3d 514, The jury convicted Everett on both counts, 518 (5th Cir. 2005) (internal quotation and and Everett appealed. This court affirmed the footnote omitted). conviction and sentence, upholding the admis- sibility of the statement Everett had made to Under Strickland v. Washington, 466 U.S. Patterson at the time of his arrest and ruling 668, 688 (1984), to establish a denial of his that the evidence was sufficient. See United Sixth Amendment right to effective assistance States v. Everett, 237 F.3d 631 (5th Cir. 2000) of counsel, Everett “must show that counsel’s (table). representation fell below an objective standard of reasonableness.” In addition, he must dem- C. onstrate that “the deficient performance preju- Everett filed a § 2255 motion to vacate, on diced [his] defense.” Id. at 687. Everett the basis of several alleged constitutional er- “bears the burden of proving both Washington rors, his conviction and sentence. He claimed, prongs, and if one of the elements is determi- inter alia, ineffective assistance of counsel on native, we need not consider the other.” Go- the grounds that (1) his attorney allowed in- chicoa v. Johnson, 238 F.3d 278, 285 (5th Cir. formation regarding the nature of his past fel- 2000). ony conviction to come in at trial, both via the stipulation and through witness testimony, and In our examination of counsel’s perfor- (2) his attorney encouraged him to waive his mance, we must make an effort “to eliminate right to be physically present at his sentencing the distorting effects of hindsight, to recon- hearing, resulting in Everett’s participating in struct the circumstances of counsel’s chal- the proceeding by video conference only. lenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” The district court denied the § 2255 motion Washington, 466 U.S. at 689. Our review is as to all claims. Proceeding pro se, Everett highly deferential to the choices made by coun- then applied to this court for a certificate of sel. We employ a “strong presumption that appealability, which we granted only with counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. “To prevail on an ineffective assistance claim 1 the defendant must argue more than mere For testifying that he bought the 9mm ammu- sub-optimal trial tactics. Our role under § nition for himself when he was buying cleaning 2255 is not to audit decisions that are within supplies for Mrs. Everett, Odom was subsequently indicted and convicted on one count of aggravated the bounds of professional prudence.” Mo- perjury under 18 U.S.C. § 1623. lina-Uribe, 429 F.3d at 518. 3 To establish prejudice, Everett “must show ment, there can be no question that evi- that there is a reasonable probability that, but dence of the name or nature of the prior of- for counsel’s unprofessional errors, the result fense generally carries a risk of unfair pre- of the proceeding would have been different. judice to the defendant. That risk will vary A reasonable probability is a probability suf- from case to case . . . but will be substantial ficient to undermine confidence in the out- whenever the official record offered by the come.” Washington, 466 U.S. at 694. “It is Government would be arresting enough to not enough for [a defendant] to show that the lure a juror into a sequence of bad charac- errors had some conceivable effect on the out- ter reasoning. Where a prior conviction come of the proceeding.” Id. at 693. was for a gun crime or one similar to other charges in a pending case the risk of unfair III. prejudice would be especially obvious . . . . Everett reasserts on appeal his argument that his attorneyrendered ineffective assistance Id. at 185. by allowing the circumstances surrounding his prior felony conviction to come in at trial and Everett contends, essentially, that by failing by encouraging him to waive his right to be at least to try to prevent the jury from hearing physically present at sentencing. In assigning that his prior conviction was for aggravated fault regarding the introduction of the circum- bank robbery, his counsel left him exposed to stances of his prior conviction, Everett alleges just such “bad character reasoning.” Even as- specifically that his counsel erred by (1) en- suming, without deciding, that his attorney’s couraging him to sign the detailed stipulation, performance in this regard falls below an ob- which notified the jury that Everett’s convic- jective standard ofreasonableness, Everett was tion was for aggravated bank robbery and that not prejudiced by the error, because he has his sentence was twenty-five years imprison- failed to show that but for the revelation of the ment; (2) eliciting from Mrs. Everett on direct nature of his prior conviction, the jury would examination her testimony that she told the have acquitted him. police about Everett’s bank robbery conviction because she knew it was illegal for him to The mere fact that Everett previously had possess ammunition and wanted him to be been convicted of a felony was uncontested, “locked up;” and (3) failing to object to ref- and the movement of the relevant ammunition erences to the details of the prior conviction in in interstate commerce was easily established. the government’s opening and closing argu- Furthermore, the jury had plenty of evidence ments. pointing to Everett’s ownership of the ammu- nition. Most notably, the officers found the In Old Chief v. United States, 519 U.S. 172 ammunition in the Everetts’ master bedroom, (1997), the Court held that the details of a pri- hidden in a chest of drawers containing men’s or conviction can, in certain circumstances, be clothing. Furthermore, despite prefacing the so unfairly prejudicial as to render them in- comment with “hypothetically,” Everett’s admissible under Federal Rule of Evidence statement to Patterson at the time of his arrest 403. The Court explained: indicated that the ammunition was his. In dealing with the specific problem raised Finally, the jury was free to conclude that by § 922(g)(1) and its prior-conviction ele- Mrs. Everett’s statements to the police regard- 4 ing Everett’s ownership of the ammunition, rather than her revised testimony at trial, more accurately reflected the truth of the matter. Given the strength of the government’s case, we cannot say that it was the jury’s possible “bad character” assessment, rather than its frank consideration of the evidence, that led to the conviction. Likewise, there was no prejudice from Everett’s physical absence from his sentencing hearing, even assuming, without deciding, that it was objectively unreasonable for his attorney to encourage him to waive his right to be present in the courtroom during the proceed- ing. In explaining that right to Everett in ad- vance of the hearing, the district court stated explicitly that Everett would receive the same sentence irrespective of whether he chose to be physically present at the hearing. Everett has failed to demonstrate how his absence, contrary to the court’s assurances, had any material effect on the sentence. Because Everett was not prejudiced by any errors trial counsel may have made, we AF- FIRM the denial of his § 2255 motion. 5