                          UNITED STATES COURT OF APPEALS
                                  For the Fifth Circuit

                           ___________________________________

                                       No. 98-50910
                           ___________________________________

                                    United States of America

                                                             Plaintiff-Appellee,

                                                v.

                                      Bruce Marlin Chavez

                                                     Defendant-Appellant.
                           ___________________________________

                          Appeal from the United States District Court
                               for the Western District of Texas
                          ___________________________________


                                        November 2, 1999

Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:


                     I. FACTUAL AND PROCEDURAL BACKGROUND

       Appellant, Bruce Marlin Chavez, was convicted on charges relating to his involvement in a

cocaine distribution operation. Chavez previously brought a direct appeal of his conviction,

alleging, inter alia, that the prosecutor improperly commented on his post-arrest silence during

cross-examination and closing, in violation of Doyle v. Ohio, 426 U.S. 610 (1976). This court

found that the prosecutor did, in fact, commit a Doyle violation. However, because Chavez’s

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counsel failed to object at trial, this court reviewed for plain error and determined that, given the

evidence adduced at trial, the error was not so substantial or prejudicial that Chavez’s trial lacked

the fundamental elements of justice.

       Chavez subsequently filed a motion to vacate pursuant to 28 U.S.C. § 2255. Chavez

alleged that his counsel’s failure to object to the prosecutor’s remarks constituted ineffective

assistance of counsel. The matter was referred to a magistrate judge who, after conducting a

hearing, recommended that the motion to vacate be denied. The district court reviewed the

matter and denied the motion. Chavez now seeks relief in this court. As Chavez filed his motion

before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, he does

not need a certificate of appealability to appeal.

       In November 1991, Juan Cardenas contacted the Drug Enforcement Agency (DEA) in El

Paso, Texas, agreeing to become a confidential informant. As a result, the DEA began an

investigation of his half-brother, Ramon Abel Cardenas-Hernandez, and others with whom Juan

Cardenas had been admittedly involved in drug trafficking.

       Chavez’s purported involvement in this matter arose out of the use of his house, located at

3460 Slocum, as a “stash” house for the trafficking operation. For approximately eighteen

months, Chavez allowed a long-time acquaintance, Jose Humberto Garcia, to stay with him at the

Slocum residence. Garcia was a key participant in the drug operation.

       An undercover DEA agent, Sal Martinez, testified that in July 1992, he went to the

Slocum residence with Juan Cardenas and another participant, Jorge Bermudez-Casas, to pick up

a suitcase containing 24 kilograms of cocaine. The suitcase had a luggage tag bearing Chavez’s

name and address. Martinez later returned the suitcase to Chavez, and at that point, engaged him


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in a conversation which indicated that Chavez was aware of the drug activities. Chavez replied,

“Oh, shit,” when told the suitcase had borne a name tag with his name on it. In addition, upon

questioning by Martinez, Chavez indicated that he could obtain additional cocaine for sale. He

also demonstrated familiarity with another stash house and its owner, and when Martinez

indicated the grass at the other house was getting high and might look suspicious, Chavez

informed Martinez that someone would take care of it. Martinez asked if it would be “Guero,”

referring to Bermudez-Casas, to which Chavez responded in the affirmative.

       Dennis Haught, Garcia’s brother-in-law and a participant in the drug operations, testified

that Chavez was aware of the drug activities in the house. Haught testified that at some point in

October 1992, he and Bermudez-Casas went to Chavez’s house to load cocaine in a secret

compartment in a car being used to transport the cocaine. Haught and Bermudez-Casas had

difficulty with the secret compartment and asked Chavez to purchase glue to hold the carpet

down. Chavez left and returned with some cement which did not work. According to Haught,

Chavez then permitted Haught and Bermudez-Casas to store the cocaine in his garage. On

October 28, 1992, DEA agents conducted a consensual search of Chavez’s house and seized 28

kilograms of cocaine.

       Chavez testified on his own behalf at trial. He denied any knowledge of the drug

trafficking activities and stated that he had become suspicious of Garcia and had asked him to

move out on a number of occasions, beginning in May or June of 1992. With respect to the

suitcase, and that it had been full of cocaine, Chavez stated that the suitcase did not belong to

him, but to Garcia, and that Garcia had lent it to him earlier. When questioned about his

conversation with Martinez, Chavez testified that he “went along” and participated in the


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conversation “playing detective” because of his suspicions about Garcia. He stated that he

discussed the situation with is then-girlfriend, now wife, Karrie Dillard Chavez, and they discussed

calling the police. Mrs. Chavez corroborated this testimony. Mrs. Chavez further testified that

she had encouraged Chavez to ask Garcia to move out, and that her husband did not want Haught

in the house. In addition, two of Chavez’s co-workers testified that Chavez had expressed

concern about Garcia, and related the suitcase incident to them. As for Haught’s use of Chavez’s

garage when trying to fill the secret compartment of his car, Chavez testified that Garcia had

asked him if Haught could use his driveway to work on his brakes.

       At the time of his arrest, Chavez did not relate to the arresting officers what he testified to

at trial. Instead, Chavez only commented by asking why he was being arrested and denying any

knowledge of narcotics trafficking.

       At trial, the prosecutor made the following remarks during cross-examination of Chavez:

       Prosecutor:     Now, after you were arrested, Mr. Chavez – Well, the story that you’ve
                       told today, this is the first time you’ve told the story, is that correct, other
                       than maybe your attorneys?

       Chavez:         Yes, sir.

       Prosecutor:     All right. You saw [DEA agent] Martinez the night you were arrested, is
                       that right?

       Chavez:         Yes, sir.

       Prosecutor:     Did you recognize him?

       Chavez:         Yeah, I think I did.

       Prosecutor:     Did you say anything to him concerning this conversation? Did he talk to
                       you about this conversation?

       Chavez:         Yes, he did.


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       Prosecutor:     And did you remember the conversation at that time?

                       He told me something about –

       The Court:      His question was, did you remember the conversation at that time?

       Chavez:         No.

       In addition, the prosecutor stated the following during closing argument:

       Finally, ladies and gentlemen, when you look at everything in this case, consider when he
       was arrested, . . . none of this, none of what you heard from the witness stand ever got
       told to the police that day. None of that explanation, because it didn’t happen. You look
       at the law, you look at the evidence and you look at common sense. These two guys are
       guilty. It’s your duty to find them guilty.

       As already discussed, a panel of this court determined that these comments violated

Doyle, but that under the plain error standard, Chavez’s trial did not lack the fundamental

elements of justice. Now, Chavez argues that his counsel’s failure to object to the prosecutor’s

remarks constituted ineffective assistance of counsel.



                                  II. STANDARD OF REVIEW

       In reviewing a district court’s denial of a motion to vacate sentence under 28 U.S.C.A. §

2255, this court reviews questions of fact for clear error and questions of law de novo. United

States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). A defendant’s claim that he received

ineffective assistance of counsel is a mixed question of law and fact to be reviewed de novo. Id.




                                        III. DISCUSSION

       In order to prevail on an ineffective assistance of counsel claim, a defendant must show (1)


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that counsel’s assistance was deficient, and (2) that the deficiency prejudiced his defense. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the prejudice prong, the

defendant must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different, and that counsel’s errors were so

serious that they rendered the proceedings unfair or the result unreliable. See Lockhart v.

Fretwell, 506 U.S. 364, 372 (1993). A failure to establish either deficient performance or

resulting prejudice defeats the claim. See Strickland, 466 U.S. at 697.

       The district court found, and the Government essentially concedes that, counsel’s failure

to object to the Doyle error constituted a deficiency, thereby satisfying the first prong of

Strickland. The focus, then is on the second prong - whether prejudice resulted.

       Chavez raises, as a threshold question, the burden of proof. In a habeas proceeding

alleging ineffective assistance of counsel, the petitioner has the burden of proof. See Clark v.

Collins, 19 F.3d 959, 964 (5th Cir. 1994). Chavez argues, however, that when the Government

benefits from a constitutional error, as in this case, the Government has the burden of

demonstrating that the error did not contribute to the verdict. In essence, Chavez invokes the

“harmless error” standard of review enunciated by the Supreme Court in Chapman v. California,

386 U.S. 18, 24 (1967), which requires “the beneficiary of a constitutional error to prove beyond

a reasonable doubt that the error complained of did not contribute to the verdict obtained.”

       Chavez’s argument is flawed, however, as it ignores the distinction between direct and

collateral review. On review of a habeas petition, as opposed to a direct appeal, courts do not

apply the “harmless error” standard enunciated in Chapman; rather, courts apply the standard of

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), reviewing the record to determine whether the


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alleged error had substantial and injurious effect or influence in determining the jury’s verdict.

Under this standard, habeas petitioners may obtain plenary review of their constitutional claims,

but they are not entitled to habeas relief based on trial error unless they can establish that it

resulted in actual prejudice. A Doyle violation is the type of trial error subject to this type of

review.

          The district court analyzed the Doyle violation under the Brecht standard, finding that the

prosecutor’s comments were not so significant or injurious that they clearly swayed the jury’s

verdict. The question of whether the Doyle violation was error under Brecht and the question of

whether counsel’s failure to object prejudiced Chavez invoke similar, if not identical, standards.

Thus, Chavez did not demonstrate prejudice under Strickland.

          Chavez contends that the comments on his post-arrest silence took away his only defense -

his credibility - undermining his testimony that he had no involvement in the drug operation. He

argues that because defense counsel failed to object to prosecutor’s comments, the jury was

invited to consider why Chavez did not tell the same story after his arrest as he did on the stand,

which is the very evil that Doyle sought to avoid.

          Doyle violations often result in reversal, premised as they are on the constitutional right to

silence. See, e.g., United States v. Edwards, 576 F.2d 1152, 1155 (5th Cir. 1978) (noting that

circumstances under which a comment on the defendant’s silence will not result in reversal are

“few and discrete”). Thus, counsel’s failure to object certainly diminished Chavez’s possibility of

reversal on direct appeal.

          However, the focus here is whether a reasonable probability exists that counsel’s deficient

performance affected the outcome and denied Chavez a fair trial. The evidence against Chavez


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was significant.1 His conversation with undercover agent Martinez demonstrated Chavez’s

familiarity with the other stash house and other participants, as well as his willingness to

participate in further transactions. See United States v. Morales, 854 F.2d 61, 63 (5th Cir. 1988)

(rejecting as implausible defendant’s contention that he was conducting his own undercover

operation when he met with an undercover agent and informer to set up a drug smuggling

operation). The evidence showed that Chavez was present when Haught attempted to conceal

cocaine in an automobile. Garcia resided with Chavez for eighteen months, making it implausible

that Chavez was utterly unaware or involved in the activities. Moreover, as the district court

noted, the jury did not give wholesale credence to the prosecutor, as it acquitted Chavez of Count

III, possession with intent to distribute cocaine on July 30, 1992, which is the date that Martinez

and Bermudez-Casas collected the suitcase from Chavez’s residence. Therefore, it is very

unlikely that the outcome of the trial would have been different absent the Doyle error.

       Chavez also contends that a new trial is required because the magistrate judge exhibited

grave doubt as to whether the Doyle violation tainted his trial, citing O’Neal v. McAninch, 513

U.S. 432 (1995), in which the Supreme court stated that whenever a federal judge is in grave

doubt about whether a trial error had substantial and injurious effect in determining the jury’s



       1
          As found by this Court on direct appeal: “The evidence at trial showed that Chavez’s
house was used as a ‘stash house.’ In July 1992, Juan, DEA agent Martinez, and Bermudez-
Casas went to Chavez’s house to pick up a suitcase with 24 kilograms of cocaine. The suitcase
had a luggage tag with Chavez’s name and address. In October 1992, Haught and Bermudez-
Casas went to Chavez’s house to load cocaine, which they had picked up from Leon-Enriquez, in
a secret compartment in the Volkswagon being used to transport the cocaine. Because Haught
and Bermudez-Casas had difficulty with the secret compartment, Chavez purchased cement to
glue the carpet down over the secret compartment. Chavez then permitted them to store cocaine
in his garage after they were unsuccessful in concealing it in the secret compartment. During the
consensual search of Chavez’s house, DEA agents seized 28 kilograms of cocaine.”

                                                  3
verdict, the error is not harmless and the defendant must win. Chavez points to numerous

statements by the magistrate judge during the habeas hearing which he claims indicate the judge

had “deep concern” for the harm. In particular, the prosecutor stated at the § 2255 hearing that

considering the evidence before the jury, “there’s nothing [he] could have said as a lawyer that

would have affected their decision.” The magistrate judge responded that if that were true, “why

say anything?”

       Chavez’s argument on this point is unavailing. The magistrate judge eventually

determined, after the habeas hearing and a review of the record, that Chavez was not prejudiced

by his counsel’s failure to object. Thus, any initial doubts the magistrate judge expressed were

resolved following the hearing, and the district court concluded likewise. Accordingly, we

AFFIRM the district court’s decision.




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