     Case: 10-30390     Document: 00511549851         Page: 1     Date Filed: 07/25/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 25, 2011
                                     No. 10-30390
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

REGAN GATTI,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:06-CV-411
                           USDC No. 5:03-CR-50033-3


Before WIENER, STEWART, and HAYNES, Circuit Judges
PER CURIAM:*
        Defendant-Appellant Regan Gatti, Louisiana prisoner # 375608, appeals
the district court’s denial of his 28 U.S.C. § 2255 motion, which he filed to
challenge his jury trial convictions of conspiring to use and carry firearms during
and in relation to a crime of violence; bank robbery; using, carrying, and
possessing firearms during and in relation to a crime of violence; and possession
of stolen firearms. He claims that his trial counsel was ineffective for failing to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30390    Document: 00511549851     Page: 2   Date Filed: 07/25/2011

                                  No. 10-30390

object to the government’s improper questions and comments regarding his post-
arrest silence. Gatti argues that the Government’s unobjected-to reference to his
post-arrest silence undermined his duress defense.
      To prevail on a claim of ineffective assistance of counsel, a defendant must
show: (1) that his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness; and (2) that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689-94 (1984).
A failure to establish either prong defeats the claim. Id. at 697. The court
indulges in a “strong presumption” that counsel’s representation fell “within the
wide range of reasonable professional assistance” or that, “under the
circumstances, the challenged action might be considered sound trial strategy.”
Id. at 689 (internal quotation marks and citation omitted). To demonstrate
prejudice, a movant “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
      Duress is a difficult defense to establish. Lee v. Hunt, 631 F.2d 1171, 1178
(5th Cir. 1980). The evidence adduced at trial was inconsistent with a duress
defense in the following respects. Even if Gatti’s version of events is accepted
as true, Gatti recklessly placed himself in the situation at issue by agreeing to
engage in criminal activity (i.e., the theft of a truck) with Larry Thompson, Sr.,
whom he knew to have a violent history. See United States v. Posada-Rios, 158
F.3d 832, 873 (5th Cir. 1998). Additionally, after he was no longer in the
presence of Thompson, and thus no longer under any threat of imminent and
impending harm, Gatti encountered police officers but failed to surrender when
he first had an opportunity to do so. See id. Moreover, any damaging effect of
the government’s references to Gatti’s post-arrest silence was ameliorated by
counsel’s rehabilitation of Gatti on redirect examination. Gatti has not shown
that there was a reasonable probability of a different outcome but for counsel’s
not objecting. See Strickland, 466 U.S. at 694.
      AFFIRMED.

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