IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2009
No. 07-40947
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ELSWORTH M BERTHELOT
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:06-CV-216
USDC No. 9:03-CR-46
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Elsworth M. Berthelot, federal prisoner # 10847-078, appeals the denial
of his 28 U.S.C. § 2255 motion challenging his felon-in-possession-of-a-firearm
conviction. The district court granted Berthelot a certificate of appealability on
the following issues: (1) whether the protective sweep of Berthelot’s house was
constitutional; (2) whether trial counsel was ineffective in failing to challenge the
legality of the protective sweep at Berthelot’s suppression hearing; and
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 07-40947
(3) whether trial counsel was ineffective for failing to offer the offense report at
the suppression hearing and argue, based upon the information therein, that the
search of Berthelot’s house was unlawful. On review of a district court’s denial
of § 2255 relief, we review factual findings for clear error and legal conclusions
de novo. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008).
Although a guilty plea ordinarily waives all nonjurisdictional defects,
including ineffective assistance claims, Berthelot may raise an ineffective
assistance claim to the extent that it affected the voluntariness of his plea. See
Cavitt, 550 F.3d at 441; Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). To
establish ineffective assistance, Berthelot must show (1) that counsel’s
performance was deficient and (2) that the deficient performance prejudiced the
defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Our analysis
of counsel’s purported ineffectiveness necessarily entails an analysis of the
underlying suppression claims. See Cavitt, 550 F.3d at 435.
Berthelot’s contention that the protective sweep of his home was per se
unconstitutional because he was arrested outside the home is meritless. See
United States v. Watson, 273 F.3d 599, 603 (5th Cir. 2001). The circumstances
surrounding the officers’ arrival at Berthelot’s home--Berthelot’s criminal
history, his history of weapons possession, the time it took him to answer the
door, and the presence of another individual in his home--were articulable facts
which, taken together with rational inferences drawn therefrom, warranted
sweeping the home to ensure the officers’ safety. See Maryland v. Buie, 494 U.S.
325, 327 (1990); United States v. Maldonado, 472 F.3d 388, 393 (5th Cir. 2006).
Moreover, Berthelot can establish no prejudice as a result of counsel’s failure to
raise this Fourth Amendment challenge given that the discovery of the firearms
forming the basis of his conviction were not found pursuant to the protective
sweep but, instead, pursuant to a consensual search. Consequently, he has not
shown that it is reasonably probable that but for counsel’s alleged error, the
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No. 07-40947
result of his suppression hearing would have been different, see Bryant v. Scott,
28 F.3d 1411, 1415 (5th Cir. 1994), and he is entitled to no relief on this claim.
Berthelot’s argument that counsel performed deficiently for failing to
adduce the offense report to challenge the legality of the search is similarly
unavailing. The evidence overwhelmingly supports a determination that the
officers did not commence their search of the residence until Berthelot’s wife
arrived on the scene and executed a consent form. To the extent that the offense
report represented that the officers did not arrive at Berthelot’s home until after
the property was searched and the firearms discovered, it merely contained a
typographical error. Berthelot has not demonstrated that any alleged
discrepancies in the offense report provided a legitimate basis for counsel to
challenge the legality of the search. “An attorney’s failure to raise a meritless
argument . . . cannot form the basis of a successful ineffective assistance of
counsel claim because the result of the proceeding would not have been different
had the attorney raised the issue.” United States v. Kimler, 167 F.3d 889, 893
(5th Cir. 1999).
AFFIRMED.
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