Case: 10-10819 Document: 00511800263 Page: 1 Date Filed: 03/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2012
No. 10-10819
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CHRISTOPHER WILLIAMS,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CV-387
USDC No. 4:07-CR-54-1
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Proceeding in forma pauperis, Christopher Williams, federal prisoner
#35731-177, challenges his convictions on drug and weapons charges and his
resulting sentence of, inter alia, 465-months’ imprisonment. Williams’ appeal
failed. After the district court denied Williams’ 28 U.S.C. § 2255 motion, a judge
of this court granted a certificate of appealability (COA) on the following issues:
(1) “Whether Williams’ appellate counsel’s refusal to raise the issue that the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-10819 Document: 00511800263 Page: 2 Date Filed: 03/26/2012
No. 10-10819
district court violated Williams’ Confrontation Clause and due process rights by
curtailing cross-examination of Officer Woodard constitutes ‘cause and prejudice’
for the procedural default of this claim”; and (2) “[w]hether Williams stated a
claim of ineffective assistance of counsel based on his trial counsel’s failure to
object to the district court’s reliance on Williams’ juvenile arrests that did not
result in convictions when deciding to depart upward under [Sentencing
Guideline] § 4A1.3”.
The record, considered in the light of the parties’ appellate briefs, shows
no error in the district court’s denial of habeas relief. Its legal conclusions are
reviewed de novo; its factual findings, for clear error. E.g., Chester v. Thaler, 666
F.3d 340, 356 (5th Cir. 2011).
As to the first certified issue, the district court denied Williams’
Confrontation Clause and due-process claims as procedurally barred because he
had not raised them at trial or on direct appeal. A defendant “may not raise an
issue for the first time on collateral review without showing both cause for his
procedural default, and actual prejudice resulting from the error”. United States
v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc) (internal quotation marks
omitted). As Williams urges here, the first issue for which the COA was granted
is, “in essence”, a claim for ineffective assistance of counsel (IAC). “[IAC] claims
are obviously of constitutional magnitude and satisfy the cause and actual
prejudice standard”. United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992).
To show IAC, Williams must show both deficient performance and
resulting prejudice. Strickland v. Washington, 466 U.S. 668, 691-92 (1984).
Obviously, not raising every nonfrivolous issue does not constitute deficient
performance. E.g., United States v. Reinhart, 357 F.3d 521, 525 (5th Cir. 2004).
Williams has not shown his appellate counsel’s performance was deficient
because he has not demonstrated the issue he sought to pursue was clearly
stronger than the issue counsel pursued on direct appeal. Smith v. Robbins, 528
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No. 10-10819
U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)). Therefore, we
need not reach the IAC prejudice prong.
As for the second certified issue, Williams maintains counsel was
ineffective by failing to object to the sentencing court’s consideration of his
unadjudicated juvenile conduct because Guideline § 4A1.3(a)(3) provides that a
“prior arrest record itself shall not be considered for purposes of an upward
departure”.
Although a district court may not consider a defendant’s bare arrest record
at sentencing, it may consider arrests “if sufficient evidence corroborates their
reliability”. United States v. Johnson, 648 F.3d 273, 277 (5th Cir. 2011). The
pre-sentence investigation report (PSR) contained more than Williams’ arrest
record. The Addendum to the PSR contained factual underpinnings for the
juvenile arrests. The district court relied on those facts when making the
upward departure, finding them sufficient to establish, by a preponderance of
the evidence, that Williams had committed the juvenile offenses in question,
even though they did not result in convictions. Williams presented no evidence
that those facts were untrue or unfounded, nor did he articulate a plausible
explanation for the arrests other than his guilt. Id. at 278. The district court
did not improperly rely merely on a history of juvenile arrests in deciding to
depart upwardly. Consequently, counsel was not deficient for not objecting on
that basis. Smith v. Puckett, 907 F.2d 581, 585 n.6 (5th Cir. 1990) (“Counsel is
not deficient for . . . failure to raise a legally meritless claim.”). Again, we need
not reach the prejudice prong.
AFFIRMED.
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