                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                                                   In the                                  August 9, 2006
                          United States Court of Appeals                              Charles R. Fulbruge III
                                        for the Fifth Circuit                                 Clerk
                                             _______________

                                               m 04-41145
                                             _______________




                                       BRUCE GALEN EVERETT

                                                               Plaintiff-Appellant,

                                                  VERSUS

                                   UNITED STATES OF AMERICA,

                                                               Defendant-Appellee.


                              ____________________________________

                              Appeal from the United States District Court
                                   for the Eastern District of Texas
                                           m 4:01-CV-324
                             _____________________________________



Before SMITH, GARZA, and CLEMENT,                       ground of ineffective assistance of counsel, his
  Circuit Judges.                                       conviction of and sentence for being a felon in
                                                        possession of ammunition in violation of 18
JERRY E. SMITH, Circuit Judge:*                         U.S.C. § 922(g)(1). We affirm.

  Bruce Everett appeals the denial of his 28                                  I.
U.S.C. § 2255 motion to vacate, on the                                        A.
                                                           On October 23, 1998, police in Plano, Tex-
                                                        as, received a call from JoAnna Everett re-
   *
     Pursuant to 5TH CIR. R. 47.5, the court has de-    garding a domestic disturbance at her house.
termined that this opinion should not be published      When the police, including Officer Jeff Rich,
and is not precedent except under the limited           arrived, they found Mrs. Everett in her front
circumstances set forth in 5TH CIR. R. 47.5.4.
yard, frantic and obviously upset. She told the         violation of federal law. While he was in the
officers that her husband, Bruce, was acting in         process of making the arrest, Everett said to
a violent and paranoid manner and that she              Patterson, “[h]ypothetically, I didn’t realize
feared he was “reverting to his old ways,”              that a convicted felon couldn’t possess ammu-
which, according to Mrs. Everett, included be-          nition.”
havior resulting in a conviction for bank rob-
bery.                                                                          B.
                                                           Everett was indicted on two counts of be-
   With regard to the specific conduct that             ing a felon in possession of ammunition in
precipitated her call to the police, Mrs. Everett       violation of 18 U.S.C. § 922(g)(1)SSone count
informed the officers that her husband had im-          for the loose ammunition, and one count for
prisoned her in the house by screwing the door          the three boxes of 9mm ammunition. To
shut, had thrown a vacuum cleaner through               prove a violation of § 922(g)(1) the govern-
their television, and had pushed a five-gallon          ment must show that the defendant (1) is a
water bottle into her. An examination of the            convicted felon (2) who knowingly possessed
physical state of the home confirmed these              ammunition and (3) that the ammunition trav-
claims. The police arrested Everett for family          eled in or affected interstate commerce. See
violence.                                               United States v. Hinojosa, 349 F.3d 200, 203
                                                        (5th Cir. 2003)
    Mrs. Everett also told the officers that her
husband kept a pistol and ammunition in the               At trial, a stipulation, signed by Everett,
house. After Everett had been taken to the              was entered and read to the jury, stating that
police station, Rich, in Mrs. Everett’s presence
and with her consent, searched a closet and                [d]efendant Bruce Galen Everett was con-
chest of drawers in the master bedroom, look-              victed in the Western District of Oklahoma
ing for the pistol. Mrs. Everett identified the            on May 7, 1982, in cause No. CR-82-66T,
chest as belonging to her husband, and it was              for aggravated bank robbery, in violation of
full of male clothing. In the top drawer Rich              Title 18, United States Code, Sections
discovered loose rounds of ammunition.                     2113(a) and (d), and sentenced to twenty-
                                                           five (25) years confinement.
    Rich was contacted by Joe Patterson, a
special agent with the Bureau of Alcohol,               Expert witnesses established that the ammuni-
Tobacco, and Firearms. Based on what Rich               tion found in Everett’s chest of drawers had
told him about the search, Patterson sought             traveled in or affected interstate commerce.
and obtained a warrant to conduct a further
search of the residence for firearms and am-               On the only truly contested element, which
munition. In executing the warrant, agents              was Everett’s knowing possession of the am-
discovered the same loose ammunition that               munition, Rich and others testified as to the
Rich had seen and three boxes of 9mm ammu-              results of the two searches, the comments
nition hidden in the bottom drawer of the same          made by Mrs. Everett regarding her husband’s
chest. No firearms were found.                          past and his ownership of the ammunition, and
                                                        the statement by Everett at the time of his
   Patterson arrested Everett on charges of             arrest. Mrs. Everett testified for the defense.
being a felon in possession of ammunition in            She recanted her prior statements regarding

                                                    2
the ownership of the ammunition and stated              respect to his claim of ineffective assistance of
that the loose ammunition belonged to her and           counsel. Everett now appeals on the basis of
that the three boxes of ammunition belonged             that issue.
to Chris Odom, one of Everett’s employees.1
Mrs. Everett explained her prior inconsistent                                  II.
statements to the police by testifying that, at            “We review a district court’s conclusions
the time, she wanted her husband to be                  with regard to a petitioner’s § 2255 claim of
“locked up” because she was concerned about             ineffective assistance of counsel de novo. We
his mental health.                                      review § 2255 findings of fact for clear error.”
                                                        United States v. Molina-Uribe, 429 F.3d 514,
   The jury convicted Everett on both counts,           518 (5th Cir. 2005) (internal quotation and
and Everett appealed. This court affirmed the           footnote omitted).
conviction and sentence, upholding the admis-
sibility of the statement Everett had made to               Under Strickland v. Washington, 466 U.S.
Patterson at the time of his arrest and ruling          668, 688 (1984), to establish a denial of his
that the evidence was sufficient. See United            Sixth Amendment right to effective assistance
States v. Everett, 237 F.3d 631 (5th Cir. 2000)         of counsel, Everett “must show that counsel’s
(table).                                                representation fell below an objective standard
                                                        of reasonableness.” In addition, he must dem-
                        C.                              onstrate that “the deficient performance preju-
    Everett filed a § 2255 motion to vacate, on         diced [his] defense.” Id. at 687. Everett
the basis of several alleged constitutional er-         “bears the burden of proving both Washington
rors, his conviction and sentence. He claimed,          prongs, and if one of the elements is determi-
inter alia, ineffective assistance of counsel on        native, we need not consider the other.” Go-
the grounds that (1) his attorney allowed in-           chicoa v. Johnson, 238 F.3d 278, 285 (5th Cir.
formation regarding the nature of his past fel-         2000).
ony conviction to come in at trial, both via the
stipulation and through witness testimony, and              In our examination of counsel’s perfor-
(2) his attorney encouraged him to waive his            mance, we must make an effort “to eliminate
right to be physically present at his sentencing        the distorting effects of hindsight, to recon-
hearing, resulting in Everett’s participating in        struct the circumstances of counsel’s chal-
the proceeding by video conference only.                lenged conduct, and to evaluate the conduct
                                                        from counsel’s perspective at the time.”
   The district court denied the § 2255 motion          Washington, 466 U.S. at 689. Our review is
as to all claims. Proceeding pro se, Everett            highly deferential to the choices made by coun-
then applied to this court for a certificate of         sel. We employ a “strong presumption that
appealability, which we granted only with               counsel’s conduct falls within the wide range
                                                        of reasonable professional assistance.” Id.
                                                        “To prevail on an ineffective assistance claim
   1
                                                        the defendant must argue more than mere
      For testifying that he bought the 9mm ammu-
                                                        sub-optimal trial tactics. Our role under §
nition for himself when he was buying cleaning
                                                        2255 is not to audit decisions that are within
supplies for Mrs. Everett, Odom was subsequently
indicted and convicted on one count of aggravated
                                                        the bounds of professional prudence.” Mo-
perjury under 18 U.S.C. § 1623.                         lina-Uribe, 429 F.3d at 518.

                                                    3
    To establish prejudice, Everett “must show             ment, there can be no question that evi-
that there is a reasonable probability that, but           dence of the name or nature of the prior of-
for counsel’s unprofessional errors, the result            fense generally carries a risk of unfair pre-
of the proceeding would have been different.               judice to the defendant. That risk will vary
A reasonable probability is a probability suf-             from case to case . . . but will be substantial
ficient to undermine confidence in the out-                whenever the official record offered by the
come.” Washington, 466 U.S. at 694. “It is                 Government would be arresting enough to
not enough for [a defendant] to show that the              lure a juror into a sequence of bad charac-
errors had some conceivable effect on the out-             ter reasoning. Where a prior conviction
come of the proceeding.” Id. at 693.                       was for a gun crime or one similar to other
                                                           charges in a pending case the risk of unfair
                       III.                                prejudice would be especially obvious . . . .
   Everett reasserts on appeal his argument
that his attorneyrendered ineffective assistance        Id. at 185.
by allowing the circumstances surrounding his
prior felony conviction to come in at trial and             Everett contends, essentially, that by failing
by encouraging him to waive his right to be             at least to try to prevent the jury from hearing
physically present at sentencing. In assigning          that his prior conviction was for aggravated
fault regarding the introduction of the circum-         bank robbery, his counsel left him exposed to
stances of his prior conviction, Everett alleges        just such “bad character reasoning.” Even as-
specifically that his counsel erred by (1) en-          suming, without deciding, that his attorney’s
couraging him to sign the detailed stipulation,         performance in this regard falls below an ob-
which notified the jury that Everett’s convic-          jective standard ofreasonableness, Everett was
tion was for aggravated bank robbery and that           not prejudiced by the error, because he has
his sentence was twenty-five years imprison-            failed to show that but for the revelation of the
ment; (2) eliciting from Mrs. Everett on direct         nature of his prior conviction, the jury would
examination her testimony that she told the             have acquitted him.
police about Everett’s bank robbery conviction
because she knew it was illegal for him to                  The mere fact that Everett previously had
possess ammunition and wanted him to be                 been convicted of a felony was uncontested,
“locked up;” and (3) failing to object to ref-          and the movement of the relevant ammunition
erences to the details of the prior conviction in       in interstate commerce was easily established.
the government’s opening and closing argu-              Furthermore, the jury had plenty of evidence
ments.                                                  pointing to Everett’s ownership of the ammu-
                                                        nition. Most notably, the officers found the
   In Old Chief v. United States, 519 U.S. 172          ammunition in the Everetts’ master bedroom,
(1997), the Court held that the details of a pri-       hidden in a chest of drawers containing men’s
or conviction can, in certain circumstances, be         clothing. Furthermore, despite prefacing the
so unfairly prejudicial as to render them in-           comment with “hypothetically,” Everett’s
admissible under Federal Rule of Evidence               statement to Patterson at the time of his arrest
403. The Court explained:                               indicated that the ammunition was his.

   In dealing with the specific problem raised            Finally, the jury was free to conclude that
   by § 922(g)(1) and its prior-conviction ele-         Mrs. Everett’s statements to the police regard-

                                                    4
ing Everett’s ownership of the ammunition,
rather than her revised testimony at trial, more
accurately reflected the truth of the matter.
Given the strength of the government’s case,
we cannot say that it was the jury’s possible
“bad character” assessment, rather than its
frank consideration of the evidence, that led to
the conviction.

    Likewise, there was no prejudice from
Everett’s physical absence from his sentencing
hearing, even assuming, without deciding, that
it was objectively unreasonable for his attorney
to encourage him to waive his right to be
present in the courtroom during the proceed-
ing. In explaining that right to Everett in ad-
vance of the hearing, the district court stated
explicitly that Everett would receive the same
sentence irrespective of whether he chose to
be physically present at the hearing. Everett
has failed to demonstrate how his absence,
contrary to the court’s assurances, had any
material effect on the sentence.

   Because Everett was not prejudiced by any
errors trial counsel may have made, we AF-
FIRM the denial of his § 2255 motion.




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