United States v. Nelson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40097
Summary Calendar
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARNOLD DWAYNE NELSON,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Texas
(6:94-CR-11)
_________________________________________________________________
November 21, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Arnold Dwayne Nelson appeals his conviction for being a

felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1). For the reasons set forth below, we affirm the

conviction.

*
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that this opinion should not be published.
 I. BACKGROUND

A. Facts

On Christmas Eve, 1993, while on routine traffic patrol,

Texas State Trooper Bruce Roberts stopped a yellow Oldsmobile

Cutlass for speeding. The driver of the Cutlass, Arnold Nelson,

told Roberts that he had left his driver's license at home. The

car was occupied by an infant and two additional adults--Billy

Ray Knox and a woman identified as Nelson's girlfriend. No one

could produce a driver's license. Roberts conducted a vehicle

registration search and radioed for criminal history checks.

When the dispatcher reported that Nelson and Knox had criminal

histories, Roberts called for a back-up unit and Troopers Scott

Lee and Merle Whitley responded. Roberts testified at trial that

during the ensuing interview, Nelson told him that he had

purchased the car at a police pound in Dallas for $200.2 Nelson

denied that there were guns and drugs in the car. He offered to

allow Roberts to search the car, but stated that he didn't have a

key to the trunk.3 During a search of the vehicle, Roberts found

marijuana in the passenger compartment. Nelson and Knox were

arrested for possession of marijuana, and advised of their rights

2
The car was titled to another individual and Nelson
testified at trial that he had borrowed the car from Eddie Ashley
several hours prior to the traffic stop.
3
Nelson testified at trial that, after borrowing the car
from Ashley, he had placed his belongings in trunk. Nelson
stated that he did not notice that there were guns in the trunk
at that time.

2
at that time. They were transported to the Hopkins County Jail

and the Oldsmobile Cutlass was impounded.

After Nelson and Knox were taken into custody, Knox told

Roberts that he thought that there were guns in the trunk of the

car. Roberts testified that, when questioned about this, Nelson

told him that the trunk contained three loaded guns which he had

purchased for $50 each on a street corner. According to Roberts,

Nelson stated that he was taking them to friends in Arkansas who

needed them for protection.4 Since having his rights read to him

at the time of his arrest approximately one hour earlier, Nelson

had not been advised of his rights again before he gave this

statement. Roberts called for a locksmith but Nelson said that

he would open the trunk himself. Nelson accompanied Roberts and

Lee to the garage area of the jail where Nelson retrieved the

trunk key from an infant's shoe hanging from the rear-view mirror

of the Oldsmobile Cutlass. Nelson put the key in the trunk lock

and Lee opened the trunk. During a search of the trunk, Roberts

and Lee found three loaded guns and a bullet-proof vest hidden

under some clothing.5

4
Nelson denied knowledge of the guns at trial.
5
A Bureau of Alcohol, Tobacco, and Firearms special agent
testified at trial that the three guns had been manufactured
outside of the State of Texas.

3
 B. Procedural History

Because he had previously been convicted for felony burglary

and theft offenses, Nelson was charged with being a felon in

possession of a firearm under 18 U.S.C. § 922(g)(1).6 Nelson

moved to suppress the evidence seized during the searches of the

car and the statements he made at the jail after his arrest.

After a hearing, the district court entered an order denying

Nelson's motion. Nelson was tried and the jury returned a guilty

verdict. The district court sentenced him to a term of

imprisonment of 86 months, a three-year term of supervised

release, and a special assessment of $50.00. Nelson brings this

appeal.7

6
Section 922(g)(1) of Title 18 of the United States Code
provides, in pertinent part:

(g) It shall be unlawful for any person--
(1) who has been convicted in any court of a crime
punishable by a term of imprisonment for a term exceeding one
year . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate commerce or foreign
commerce.

18 U.S.C. § 922(g)(1).
7
Although he is represented by counsel, Nelson has moved
for leave to file a supplemental pro se brief. He argues that
otherwise he will be denied "his constitutional right to equal
access to the appellate process" because his attorney's brief
does not address all of the issues that he wishes to raise. A
defendant in a criminal trial has the right to assistance of
counsel, and the right to represent himself. United States v.
Daniels, 572 F.2d 535, 540 (5th Cir. 1978). "The criminal
defendant does not have the right, however, to a 'hybrid
representation,' partly by counsel and partly by himself." Id.
Nelson does not have a constitutional right to file his own brief
in addition to that filed by his counsel. See Smith v. Collins,

4
 II. ANALYSIS

Nelson advances five grounds for reversal of his conviction.

His first argument on appeal is that the trial judge should have

suppressed the evidence obtained during the searches of the car.

Nelson also argues that the statements he made at the jail after

his arrest should have been suppressed. Nelson contends that the

evidence was insufficient to support his conviction. He

maintains that the prosecutor engaged in improper jury argument

by attempting to shift the burden of proof from the government.

Finally, Nelson argues that he received ineffective assistance of

counsel because his attorney failed to make an opening statement.

A. Search of Nelson's Vehicle

Nelson contends that the district court erred in finding

that he voluntarily consented to the initial search of the

Oldsmobile Cutlass. He further argues that because the search of

the passenger compartment was illegal, the search of the trunk

after his arrest was also constitutionally infirm. Therefore,

Nelson asserts, any evidence found during the searches of the car

should have been suppressed. We review a district court's ruling

on a motion to suppress evidence by employing a two-tier

standard, "reviewing the district court's factual findings for

clear error and its ultimate conclusion as to the

977 F.2d 951, 962 (5th Cir. 1992) (citing Daniels, 572 F.2d at
540; Neal v. Texas, 870 F.2d 312, 315-16 (5th Cir. 1989), cert.
denied, 114 S. Ct. 97 (1993)). Therefore, Nelson's motion for
leave to file a supplemental pro se brief is denied.

5
constitutionality of the law enforcement action de novo." United

States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir. 1993).

All of the evidence introduced at the suppression hearing and at

trial is viewed in the light most favorable to the prevailing

party. United States v. Ponce, 8 F.3d 989, 995 (5th Cir. 1993).

Applying this standard of review, we conclude that the trial

judge did not clearly err in finding that Nelson consented to the

original search of the car.

We assess the legality of a search conducted during a

traffic stop by determining whether at its inception the

officer's action was justified and whether the officer's action

was reasonably related in scope to the circumstances which

precipitated the interference in the first place. United States

v. Kelley, 981 F.2d 1464, 1467 (5th Cir.), cert. denied, 113

S. Ct. 2427 (1993) (citing Terry v. Ohio, 392 U.S. 1, 19-20

(1968)).

Trooper Roberts testified that he stopped Nelson initially

for speeding. Nelson does not deny that the stop was justified

at its inception. He argues, however, that his consent was

coerced. Nelson contends that the voluntariness of his consent

was vitiated because he consented while being detained for not

producing a driver's license. The government has the burden of

proving by a preponderance of the evidence that consent to search

was given freely and voluntarily. United States v. Hurtado, 905

F.2d 74, 76 (5th Cir. 1990) (en banc) (citing United States v.

Matlock, 415 U.S. 164, 177 n.14, (1974)). The Supreme Court has

6
resolved that voluntariness of consent is a question of fact to

be determined from a totality of the circumstances. Schneckloth

v. Bustamonte, 412 U.S. 218, 227 (1973).

To determine whether consent to a search was voluntary, we

generally focus on the following six factors:

(1) the voluntariness of the defendant's custodial status;
(2) the presence of coercive police procedures; (3) the
extent and level of the defendant's cooperation with the
police; (4) the defendant's awareness of his right to refuse
to consent; (5) the defendant's education and intelligence;
and (6) the defendant's belief that no incriminating
evidence will be found.

United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir.

1988) (citations omitted). All six factors are relevant, but

none is dispositive or controlling. Id. The district court

invoked these six factors and found no evidence that Nelson's

consent was involuntarily given. We review the district court's

findings respecting voluntariness for clear error. Olivier-

Becerril, 861 F.2d at 425-26. Moreover, "[w]here the judge bases

a finding of consent on the oral testimony at a suppression

hearing, the clearly erroneous standard is particularly strong

since the judge had the opportunity to observe the demeanor of

the witnesses." United States v. Sutton, 850 F.2d 1083, 1086

(5th Cir. 1988).

After reviewing the record, we conclude that the district

court's finding that Nelson consented to the original search was

not clearly erroneous. Although at the time of his consent

Nelson was not free to leave, the circumstances of the traffic

stop cannot be characterized as coercive. Roberts had not placed

7
him under arrest and there is no evidence in the record to

suggest that the officers used coercive methods to obtain

Nelson's consent to search his car. Although Nelson was not

advised that he had a right to withhold his consent, neither was

he pressured to give his consent. Nelson invited Roberts to

search the car before Roberts had a chance to ask him for his

consent. Furthermore, not only is "[p]roof of knowledge of the

right to refuse consent . . . not required to show

voluntariness," United States v. Davis, 749 F.2d 292, 296 (5th

Cir. 1985), but Nelson had an extensive criminal history and

presumably he knew that he had the right to refuse consent.8

Because Nelson had denied that he had a trunk key, Roberts

reasonably interpreted Nelson's consent to be limited to the

passenger compartment of the car. There is nothing in the record

to indicate that Nelson is unsophisticated or intellectually

impaired and Nelson expressed the belief that a search would

uncover no incriminating evidence.

The district court also found that the search of Nelson's

trunk fell within the automobile exception. Where the police

have probable cause to believe that a vehicle contains seizable

evidence, the automobile exception allows police to conduct a

search without a search warrant. California v. Carney, 471 U.S.

8
Nelson also suggests that consent is invalid unless it is
in writing. We have consistently recognized the validity of oral
consent in this area. See United States v. McSween, 53 F.3d 684,
687-88 (5th Cir. 1995); United States v. Lopez, 911 F.2d 1006,
1010-1011 (5th Cir. 1990).

8
386 (1985); United States v. Ross, 456 U.S. 798 (1982). If

probable cause exists to justify the search of a vehicle, then

every part of the vehicle and its contents that may conceal the

seizable evidence may be searched. Ross, 456 U.S. at 825. Once

marijuana was found, Roberts had probable cause to search the

entire vehicle. United States v. McSween, 53 F.3d 684, 686-87

(5th Cir.), cert. denied, 116 S. Ct. 199 (1995). Additionally,

whenever a warrantless at-the-scene search is permissible, the

police may choose instead to seize the car and search it at the

police station. United States v. Kye Soo Lee, 962 F.2d 430, 438

(5th Cir. 1992) (citing inter alia Texas v. White, 423 U.S. 67,

68 (1975)), cert. denied, 113 S. Ct. 1057 (1993). The district

court found that, once the state troopers had discovered

marijuana in the passenger compartment, they had probable cause

to search the rest of the car. These findings are supported by

the record. The district court's denial of Nelson's request to

suppress the firearms found during the search was not clearly

erroneous.

B. Nelson's Custodial Statements

Nelson contends that, because he never waived his Miranda9

rights, the district court should have suppressed the

incriminating statements he made at the jail after his arrest.

9
The Fifth Amendment privilege against self-incrimination
requires that a suspect subject to custodial interrogation be
warned of his rights not to incriminate himself. Miranda v.
Arizona, 384 U.S. 436 (1966).

9
We have stated that "[i]t is axiomatic that an accused must be

informed of his Miranda rights in a way that ensures his knowing,

intelligent and voluntary exercise or waiver thereof." United

States v. Collins, 40 F.3d 95, 98 (5th Cir. 1994), cert. denied,

115 S. Ct. 1986 (1995). Nelson argues that his jailhouse

statements, and--according to the "fruit of the poisonous tree"

doctrine--all evidence derived from them, should be suppressed

because he had not been re-advised of his rights before being

questioned at the jail, and because it was coercive for Roberts

to send for a locksmith. As set out in the previous section, we

review the ruling of a district court on a motion to suppress by

applying a two-tier standard. United States v. Jenkins, 46 F.3d

447, 451 (5th Cir. 1995). The district court's factual findings

are reviewed for clear error and its ultimate conclusion about

the law enforcement action is reviewed de novo. Chavez-

Villarreal, 3 F.3d at 126. The evidence is viewed in the light

most favorable to the prevailing party. Jenkins, 46 F.2d at 451.

We conclude that the district court did not clearly err in

denying the motion to suppress the incriminating statements

Nelson made while in custody.

Whether Nelson waived his Miranda rights is a factual

question for the district court. Collins, 40 F.3d at 98-99. In

responding to a motion to suppress a confession, the Government

bears the burden of showing that the defendant was informed of

his Miranda rights and that "his waiver thereof and the resultant

confession were the `product of a free and deliberate choice.'"

10
Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). A

waiver may be direct or it may be inferred from the actions and

words of the person interrogated. Id. at 99. However, merely

answering questions is not enough to show waiver. Waiver of

Miranda rights must be demonstrated by some affirmative action.

Id.

The district court found that, based upon his statements and

actions, Nelson had voluntarily waived his Miranda rights.

Roberts testified that when Nelson was arrested, he was advised

of his right to remain silent. Notwithstanding the passage of

one hour between the reading of the Miranda rights and his

interrogation at the jail, there was no basis for concluding that

Nelson did not understand that he had the right to remain

silent.10 Nelson argues that the district court erred in failing

to determine whether Roberts "scrupulously honored" Nelson's

right to remain silent, as mandated in Charles v. Smith, 894 F.2d

718, 725-26 (5th Cir.), cert. denied, 498 U.S. 957 (1990).

Nelson's reliance on Charles is misplaced. In Charles, a police

officer persisted in questioning a suspect just minutes after the

suspect asserted his right to remain silent for a second time.

Charles teaches that a court must examine whether a suspect's

10
The district court found that the delay of about one
hour between the reading of his Miranda rights and the custodial
interrogation resulting in the incriminating statements was not
sufficient to render Nelson's waiver unintelligent. In making
this determination, the trial judge relied on the fact that the
one hour delay was the result of the travel time between the
scene of the traffic stop and Nelson's arrival and booking at the
jail.

11
right to cut off questioning was scrupulously honored "[w]hen a

suspect . . . halts police interrogation by asserting the right

to remain silent." Id. The district court determined that at no

time did Nelson invoke his right to remain silent.

Nelson voluntarily chose to speak with Roberts after he had been

advised of his right not to do so. The district court found that

Nelson's offer to open the trunk for Roberts was not coerced by

the presence of a locksmith. He voluntarily retrieved the key

from its hiding place in the Oldsmobile Cutlass and he placed it

in the trunk lock. Based on Nelson's statements and conduct, the

determination of the district court that Nelson waived his

Miranda rights is not clearly erroneous. Because we find no

clear error in the district court's determination that Nelson

validly waived his rights, we need not address Nelson's argument

that evidence derived from his incriminating statements must be

suppressed as "fruit of the poisonous tree."

C. Sufficiency of the Evidence

Nelson argues that the evidence was insufficient to support

his conviction. We disagree. The standard of review in

assessing a challenge to the sufficiency of the evidence in a

criminal case is "whether a rational juror could have found each

element of the crime proven beyond a reasonable doubt."11

11
We apply this standard of review because Nelson timely
moved for judgment of acquittal. United States v. Landry, 903
F.2d 334, 338 (5th Cir. 1990). When a defendant fails to
preserve a sufficiency claim a stricter standard is applied. See

12
Collins, 40 F.3d at 99; see also Jackson v. Virginia, 443 U.S.

307, 319 (1979). In evaluating the sufficiency of the evidence,

this court views all evidence and all reasonable inferences drawn

from it in the light most favorable to the government. United

States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc),

aff'd on other grounds, 462 U.S. 356 (1983).

Conviction for a violation of § 922(g)(1) requires proof

beyond a reasonable doubt that the defendant is a convicted

felon, who knowingly possessed a firearm, and that his possession

was in or affecting interstate commerce. United States v. Dancy,

861 F.2d 77, 81 (5th Cir. 1988). Nelson contends that the

government failed to prove that he was in knowing possession of a

firearm. He suggests that the guns could have been placed in the

trunk by Knox. Nelson argues that the Government offered no

direct evidence that he possessed the guns. Possession of a

firearm, however, may be actual or constructive. United States

v. Wright, 24 F.3d 732, 734 (5th Cir. 1994). We have defined

constructive possession as "ownership, dominion, or control over

the contraband itself or dominion or control over the vehicle or

premises in which the contraband is concealed." Id.; see United

States v Orozco, 715 F.2d 158, 161 (5th Cir. 1983) (finding

constructive possession of a firearm where defendant-passenger

did not own vehicle, but had kept it at his home). We have

United States v. Galvan, 949 F.2d 777, 782-83 (5th Cir. 1991)
(applying "manifest miscarriage of justice" standard where
defendant failed to move for a directed verdict or a judgment of
acquittal).

13
pointed out that, "[i]n the nature of things, proof that

possession of contraband is knowing will usually depend on

inference and circumstantial evidence." United States v.

Richardson, 848 F.2d 509, 514 (5th Cir. 1988) (affirming

conviction for cocaine possession where the proof was not

conclusive but constituted substantial evidence when "taken as a

whole"). Furthermore, "knowledge of the presence of the

contraband may ordinarily be inferred from the exercise of

control over the vehicle in which it is concealed." Id. at 513.

Nelson was the driver of the Oldsmobile Cutlass. Roberts

testified that Nelson told him he was the owner of the vehicle.

A reasonable juror could conclude that Nelson was in constructive

possession of the firearms found in the trunk. Moreover, Roberts

testified that Nelson admitted owning the guns and helped Roberts

open the trunk. There was ample evidence from which a reasonable

juror could conclude that Nelson had knowingly possessed the

guns. See United States v. Knezek, 964 F.2d 394, 400 (5th Cir.

1992) (finding no plain error in illegal firearms conviction

where defendant was driver of vehicle and admitted owning guns);

United States v. Speer, 30 F.3d 605, 612 (5th Cir. 1994)

(concluding that driver constructively possessed firearm in

physical possession of front-seat passenger because driver

admitted that gun was in vehicle so that he would not be "ripped-

off"), cert. denied, 115 S. Ct. 603 (1994), and cert. denied, 115

S. Ct. 768 (1995).

14
 D. Prosecutor's Jury Argument

Nelson complains that prosecutorial misconduct during

closing arguments deprived him of a fair trial. He argues that

the prosecutor attempted to improperly shift the burden of proof

from the government to the defendant by calling for the jury to

make an inference from Nelson's failure to call Billy Ray Knox to

testify. Only when it is both inappropriate and harmful,

however, does a prosecutor's comment to the jury constitute

reversible error. United States v. Lowenberg, 853 F.2d 295, 301

(5th Cir. 1988), cert. denied, 489 U.S. 1032 (1989); see United

States v. Young, 470 U.S. 1, 16 (1985). When a contemporaneous

objection is made, the standard of review on appeal is whether

the defendant's substantial rights have been prejudiced. United

States v. Fierro, 38 F.3d 761, 771 (5th Cir. 1994), cert. denied,

115 S. Ct. 1388 (1995), and cert. denied, 115 S. Ct. 1431 (1995).

A criminal conviction will not be lightly overturned based on a

prosecutor's comments standing alone. Lowenberg, 853 F.2d at

302. "[T]he remarks must be examined within the context of the

trial to determine whether the prosecutor's behavior amounted to

prejudicial error." Young, 470 U.S. at 12. We find that the

prosecutor's remarks did not deprive Nelson of a fair trial.

During his closing argument, Nelson's counsel made the

following comments:

What else didn't they bring you? You know, we talked about
this Billy Knox. Where is he? The government has the
burden of proof. Why didn't they bring him in here?
Evidently, the government wants to rely on the fact that Mr.
Knox had some conversation previously with Mr. Nelson, where

15
 Mr. Nelson won't even take the rap. Do y'all remember those
questions? If that's the case, wouldn't that have been
another admission by Mr. Nelson? But he's not here.
Wouldn't that help you make your decision? . . . They've not
brought you Billy Knox; so, we don't know if Billy Knox could
have opened that trunk or not.

During rebuttal, the prosecutor made the following comments:

[Defense counsel] pointed out to you that Mr. Knox is not
here, and he left the impression, ladies and gentlemen, that
-- that that was some kind of -- of mistake on our part, not
to have him here. Well, I would simply point out to you
that the defendant in this case, as in any case, has the
same subpoena power that the prosecution has, and that if
Mr. Knox were gonna help their side, I'm sure they would
have subpoenaed him and had him here were he available.

At this point, Nelson objected that the argument improperly

suggested that the defense bore the burden of proof. The

district court overruled the objection, stating:

In a civil case, I testify that if the witnesses are equally
available to either side, then neither side can make
anything of the fact that the witness hasn't been called. I'm
inclined to agree that that same instruction is proper in a
criminal case.

We have noted that "[c]ounsel is accorded wide latitude

during closing argument, and this court gives deference to a

district court's determination regarding whether those arguments

are prejudicial and/or inflammatory." United States v. Palmer,

37 F.3d 1080, 1085 (5th Cir. 1994), cert. denied, 115 S. Ct. 1804

(1995). Three factors are considered to determine whether

serious doubt is cast upon the correctness of the jury's verdict:

"(1) the magnitude of the prejudicial effect of the prosecutor's

remarks, (2) the efficacy of any cautionary instruction by the

judge, and (3) the strength of the evidence supporting the

conviction." Id.

16
 With regard to factor (1), we find that the prejudicial

effect of the prosecutor's remarks was negligible. The comments

of Nelson's counsel invited a response; the prosecutor was

entitled to respond to the statements regarding Knox's absence.

We have explained that "[a] defendant cannot complain on appeal

of alleged errors invited or induced by himself, particularly

where, as here, it is not clear that the defendant was prejudiced

thereby." United States v. Lewis, 524 F.2d 991, 992 (5th Cir.

1975) (finding no error where challenged testimony was designed

to correct insinuation of defense counsel during cross-

examination), cert. denied, 425 U.S. 938 (1976).

With regard to factor (2), we find that the district court

properly instructed the jury as to the burden of proof. The

judge gave the following instructions to the jury:

The burden is always upon the government -- upon the
prosecution to prove guilt beyond a reasonable doubt. This
burden never shifts to a defendant; for the law never
imposes upon a defendant in a criminal case the burden or duty
of calling any witnesses or producing any -- evidence.

Where both parties have commented in closing argument on the

failure of the other side to call a particular witness, and the

defendant argues on appeal that the prosecutor's comments

improperly shifted the burden of proof, we have found "neither

error nor any indication of bias." United States v. Jordan, 49

F.3d 152, 159 (5th Cir. 1995) (citing United States v. Ivey, 550

F.2d 243, 244 (5th Cir.), cert. denied, 431 U.S. 943 (1977)). In

Jordan, we found that the prosecution's remarks were not

prejudicial because the prosecution's argument was responsive to

17
the defendant's argument and because the district court properly

instructed the jury on the Government's burden of proof. Id.

Similarly, in the instant case, we find that Nelson's counsel

invited a response by the prosecutor and that the trial judge

properly instructed the jury.

Additionally, we find that factor (3)--the strength of the

evidence supporting the conviction--weighs against Nelson.

Notwithstanding the absence of direct evidence that Nelson

possessed the firearms, there is a substantial amount of credible

evidence pointing to his guilt. We conclude that prosecutorial

misconduct during closing arguments did not deprive Nelson of a

fair trial.

E. Ineffective Assistance of Counsel

Nelson argues that he received ineffective assistance of

counsel because his attorney failed to make an opening statement.

To prevail on this claim, Nelson "must show that: (1) the

attorney's representation fell below an objective standard of

reasonableness, and (2) there is a reasonable probability that

except for the attorney's unprofessional errors, the results of

the proceeding would have been different." United States v.

Kinsey, 917 F.2d 181, 183 (5th Cir. 1990) (citing Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984)). Nelson has not

demonstrated ineffective assistance because he has not shown that

he was prejudiced by the attorney's failure to make an opening

statement. Attorney error is prejudicial if it renders the

18
result of the proceeding unreliable or the proceeding

fundamentally unfair. Although Nelson argues generally that a

reasonable attorney must take advantage of the opportunity to

influence the jury provided by the opening statement, he does not

suggest what the attorney should have said or why he was

prejudiced by the attorney's failure to avail himself of that

opportunity.

III. CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the

district court without prejudice to Nelson's right to raise his

ineffective-assistance-of-counsel argument in a proper proceeding

under 28 U.S.C. § 2255.

AFFIRMED.

19