IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30479
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WELTON BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(CA-94-3753 & CR-89-377-F)
October 27, 1995
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Welton Brown appeals rulings of the
district court that culminated in the denial of his motions to
correct his sentence, to credit him for time served, to provide for
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
concurrent running of his state and federal sentences, and to grant
his habeas petition under 28 U.S.C. § 2255. Finding no reversible
error, we affirm.
I
FACTS AND PROCEEDINGS
A jury convicted Welton Brown of bank robbery, in violation of
18 U.S.C. § 2113(a).1 The district court imposed the statutory
maximum sentence of 240 months imprisonment to run consecutively to
any state court sentence. Brown appealed, challenging the district
court's decisions that his lineup identification was admissible and
that his sentence would run consecutive to any state sentence
resulting from the robbery. We affirmed the judgment of the
district court on direct appeal.2
Brown filed a motion to correct his sentence pursuant to
Fed. R. Crim. P. 35, seeking credit for time served, but that
motion was denied. His petition under 28 U.S.C. § 2241, seeking an
order that his state and federal sentences run concurrently, was
also denied. He then filed a § 2255 motion to vacate, set aside,
or correct sentence raising six grounds of relief.
In its response, the government asserted that Brown was
procedurally barred from raising his claims in a § 2255 motion and
that his motion was successive under Rule 9(b) of the Rules
Governing Section 2255 Proceedings. The magistrate judge
1
The underlying facts of this case are set forth in detail
in United States v. Brown, 920 F.2d 1212 (5th Cir.), cert. denied,
500 U.S. 925 (1991).
2
Id.
2
determined from the record that Brown had not filed previous § 2255
motions and that the motion was not successive; but concluded
nevertheless that all of Brown's claims except those of ineffective
assistance of counsel were procedurally barred. As for the
ineffective assistance claim, the magistrate judge determined that
Brown had not shown that counsel's performance was deficient or
that Brown had been prejudiced, and recommended that the district
court deny the § 2255 motion.
The district court considered Brown's objections to the
magistrate judge's report and conducted de novo review. Thereafter
the court adopted the magistrate judge's report and recommendation,
and denied relief. Brown timely filed a notice of appeal.
II
ANALYSIS
Brown raises the following issues in this appeal: (1) he was
deprived of his Fifth Amendment right to remain silent by an F.B.I.
agent who elicited his confession; (2) police officers used
suggestive identification procedures in presenting to
identification witnesses the photos taken by a bank surveillance
camera; (3) the district court deprived him of a fair trial by not
permitting some members of the jury to see Brown after
deliberations had begun, even though four of the jurors were unable
to see him during the trial because their view was blocked by a
podium; (4) the district court accepted counsel's unauthorized
waiver of Brown's right to be present during the reading of an
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Allen3 charge; (5) the district court gave an Allen charge to the
jury without permitting the jury to view Brown; and (6) counsel was
ineffective at trial in several respects.
"For a collateral attack under § 2255, `a distinction is drawn
between constitutional or jurisdictional errors on the one hand,
and mere errors of law on the other.'" United States v. Pierce,
959 F.2d 1297, 1300-01 (5th Cir.) (quoting United States v. Capua,
656 F.2d 1033, 1037 (5th Cir. Unit A 1981)), cert. denied, 113 S.
Ct. 621 (1992). Even an alleged constitutional error may not be
raised "for the first time on collateral review without showing
both `cause' for [the] procedural default, and `actual prejudice'
resulting from the error." United States v. Shaid, 937 F.2d 228,
232 (5th Cir. 1991) (en banc), cert. denied, 502 U.S. 1076 (1992)
(citation omitted).
A. Ineffective Assistance of Counsel
Brown's claims that counsel was ineffective are of
constitutional magnitude and, as a general rule, cannot be resolved
on direct appeal. Pierce, 959 F.2d at 1301 (citing inter alia
United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987)),
cert. denied, 484 U.S. 1075 (1988). To support a claim of
ineffective assistance of counsel, Brown must meet both the cause
and prejudice prongs of the test established in Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). To show prejudice, the
3
"`Allen' refers to Allen v. United States, 164 U.S. 492
(1896). The term describes supplemental instructions urging jurors
to forego their differences and reach a unanimous verdict." United
States v. Heath, 970 F.2d 1397, 1406 n.2 (5th Cir. 1992), cert.
denied, 113 S. Ct. 1643 (1993).
4
defendant must demonstrate that counsel's errors were so serious as
to deprive the defendant of a trial the result of which is fair or
reliable. Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993). "An
insufficient showing of prejudice pretermits addressing the [cause]
prong." Pierce, 959 F.2d at 1302.
Brown contends that counsel was ineffective in waiving Brown's
right to be present during trial proceedings. Brown was absent
from the courtroom on two occasions: (1) when the district court
recessed at the end of the day and admonished the jury concerning
their responsibility until they returned the next morning, and
(2) during a modified Allen charge the following day after the jury
had advised the district court that it could not make a unanimous
decision.
Defense counsel's decision not to allow Brown to appear before
the jury when the recess was announced or when the Allen charge was
given is consistent with her attempt to prevent the jury from
viewing Brown again. During deliberations, the jury asked to see
the defendant because some of the jurors' view had been blocked.
Defense counsel asked the district court to allow her time to think
about it and to confer with her associates. She then opposed
permitting the jury to see Brown because it was tantamount to
improperly reopening the evidence. Defense counsel argued that
part of the defense was "identification and the recollection of
what one looks like, and that to essentially bring him in and
present him to the jury is an additional fact." As a result, the
district court did not allow the jury to view the defendant because
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the evidence was closed.
Brown has failed to demonstrate that counsel's aggressive
opposition to permitting the jury to view him was not sound trial
strategy. It was reasonable for counsel to conclude from the
jury's questions to the district court that it was having
difficulty with the identification evidence. "[S]trategic choices
made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation." Black v. Collins, 962
F.2d 394, 401 (5th Cir.) (internal quotation and citation omitted),
cert. denied, 504 U.S. 992 (1992). Even if counsel did not confer
with Brown concerning her decision that he not appear, Brown has
not demonstrated that counsel's errors were so serious as to
deprive him of a trial with a fair or reliable result.
Brown also asserts that counsel's conduct was unprofessional
and that she failed to preserve his rights for appeal. He fails to
argue these issues in the body of his brief, however, so they are
deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). Brown is also deemed to have abandoned any issues
concerning counsel's effectiveness raised in the district court but
not raised on appeal. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). We "will not
raise and discuss legal issues that [Brown] has failed to assert."
Id.
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B. Remaining claims
Brown's remaining contentions "fail to clear the procedural
hurdle for a collateral challenge." Pierce, 959 F.2d at 1304.
Although the issues are of constitutional magnitude, Brown has
neither demonstrated cause for failing to raise these issues on
direct appeal nor the prejudice he would suffer if we should refuse
to address these claims. Brown asserted in his objections to the
magistrate judge's report that counsel's ineffectiveness caused the
procedural default and that Brown suffered actual prejudice. Again
in his reply brief, Brown asserted that he had demonstrated cause
and prejudice. And he reiterated his contentions that the
identification was suggestive and that he was deprived of his Fifth
and Sixth Amendment rights. Brown failed, however, to argue his
Sixth Amendment claims adequately, other than that his counsel was
ineffective in waiving Brown's right to be present during two
particular incidents. Brown has not shown that he has been
deprived of his Sixth Amendment right; thus, he has not
demonstrated either cause or prejudice. See Murray v. Carrier, 477
U.S. 478, 488 (1986). For these reasons, the judgment of the
district court denying § 2255 relief is
AFFIRMED.
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