                                                                                   FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                             January 6, 2016
                                     TENTH CIRCUIT
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court


    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

    v.                                                        No. 15-6082
                                                             (W.D. Okla.)
    JULIUS LEE TURRENTINE,                          (D.C. Nos. 5:14-CV-00737-HE &
                                                         5:12-CR-00001-HE-1)
          Defendant - Appellant.



                                  ORDER AND JUDGMENT*


Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges.


         Defendant Julius Lee Turrentine, a federal prisoner, was convicted in March 2012

of conspiracy to possess with intent to distribute five or more kilograms of cocaine. See

21 U.S.C. §§ 846 and 841(b)(1)(A). He was sentenced to 240 months’ imprisonment.


*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. The case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
After we affirmed his conviction, see United States v. Turrentine, 542 F. App'x 714 (10th

Cir. 2013) cert. denied, 134 S. Ct. 1356 (2014), he filed an unsuccessful motion in the

United States District Court for the Western District of Oklahoma under 28 U.S.C. §

2255. We granted a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)(B), to

permit him to appeal on one question: “Whether appellate counsel was ineffective in

failing to appeal from the denial of trial counsel’s objection to the admission into

evidence of the Defendant’s prior conviction under Federal Rule of Evidence 404(b).”

Order, July 27, 2015. We affirm.

       Defendant’s offense was discovered in November 2011 when he was stopped in

Oklahoma for failure to signal as he exited to a toll plaza. See Turrentine, 542 F. App'x

at 715–16. The car had been rented by his passenger, Jimmie Johnson. See id. at 716.

After Defendant and Johnson gave differing accounts of their current travels, they were

detained while a trained dog was brought to their vehicle. See id. The dog alerted to the

presence of narcotics, and a search led to the discovery of 11 kilograms of powder

cocaine hidden in the vehicle. See id.

       Before trial the government notified Defendant that it planned to introduce

evidence of a prior conviction to prove intent, knowledge, and absence of mistake.

Defendant had pleaded guilty in 1999 in California federal court to conspiracy to possess

with intent to distribute cocaine—the same offense as in his present case—and was

sentenced to 108 months’ (nine years’) imprisonment. Defense counsel objected, arguing

that the conviction bore no similarity to the current offense, that it was too remote in
                                              2
time, and that its probative value was substantially outweighed by its improper

prejudicial effect. The judge admitted the evidence, and Defendant was convicted.

Counsel appealed but did not raise the Rule 404(b) issue. The question before us is

whether omission of that issue constituted ineffective assistance of appellate counsel. We

hold that it did not.

       To prove that appellate counsel was ineffective under Strickland v. Washington,

466 U.S. 668 (1984), Defendant must show “(1) constitutionally deficient performance,

by demonstrating that his appellate counsel’s conduct was objectively unreasonable, and

(2) resulting prejudice, by demonstrating a reasonable probability that, but for counsel’s

unprofessional error(s), the result of . . . the appeal . . . would have been different.”

Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). Although “[a] claim of appellate

ineffectiveness can be based on counsel’s failure to raise a particular issue on appeal, . . .

counsel need not (and should not) raise every nonfrivolous claim, but rather may select

from among them in order to maximize the likelihood of success on appeal.” Id. (internal

quotation marks omitted). The strength of the omitted issue guides our assessment of the

ineffectiveness claim. “If the omitted issue is so plainly meritorious that it would have

been unreasonable to winnow it out even from an otherwise strong appeal, its omission

may directly establish deficient performance.” Id. “[I]f the omitted issue has merit but is

not so compelling, the case for deficient performance is more complicated, requiring an

assessment of the issue relative to the rest of the appeal, and deferential consideration


                                               3
must be given to any professional judgment involved in its omission.” Id. And “if the

issue is meritless, its omission will not constitute deficient performance.” Id.

       Defendant contends that the evidence of his prior conviction was clearly

inadmissible. He argues that the prior offense was too remote in time and too dissimilar

to be relevant, and that it was introduced only to show bad character and propensity to

commit drug crimes. In particular, he contends that the district court improperly

discounted the 12-year lapse between his prior conviction and his present offense by

subtracting the period he was incarcerated.

       But there were sound reasons for his counsel to think that the chance of success on

this issue was slim. To begin with, our standard of review of the district court’s decision

is quite deferential. We review a decision to admit evidence under Rule 404(b) for abuse

of discretion and “[w]e will not reverse a district court's ruling if it falls within the

bounds of permissible choice in the circumstances and is not arbitrary, capricious or

whimsical.” United States v. Moran, 503 F.3d 1135, 1143 (10th Cir. 2007) (internal

quotation marks omitted). In Moran we addressed the decision to admit a 1994

conviction for possession of a firearm to show “knowledge, intent, and absence of

mistake or accident” in the trial for a 2005 offense of being a felon in possession of a

firearm. Id. at 1139, 1144. Although the defendant argued that “the past conviction was

not similar enough in nature or close enough in time to the charged offense,” we held that

the district court did not abuse its discretion in admitting it to show knowledge that a rifle

was in the backseat of his girlfriend’s vehicle. Id. at 1144–46; see id. at 1146 (“The
                                                4
closeness in time and the similarity in conduct were matters left to the trial court, and its

decision will not be reversed absent a showing of abuse of discretion.” (brackets and

internal quotation marks omitted)). A panel of this court has since expressed some

discomfort with Moran, see United States v. McGlothin, 705 F.3d 1254, 1263–64 n.13

(10th Cir. 2013), but that was after Defendant’s attorney filed his brief in his criminal

appeal.

       Second, Defendant’s argument that the conviction was too remote in time is not

compelling. We have affirmed district-court decisions excluding the time of

incarceration because during this period the defendant “obviously had no opportunity to

commit other distribution offenses.” United States v. Cherry, 433 F.3d 698, 702 n.4 (10th

Cir. 2005); see United States v. Brooks, 736 F.3d 921, 940 (10th Cir. 2013); United States

v. Adams, 401 F.3d 886, 894 (8th Cir. 2005) (15-year-old narcotics conviction relevant

when defendant committed instant offense four years after being released). Defendant

had been in custody for all but about three years between his 1999 conviction and his

2011 offense.1

       Further, the evidence of Defendant’s prior conviction had special relevance in this

case. One of the central issues at trial was whether Defendant knew of the presence of

the cocaine hidden in the rented vehicle. Minutes after officers found the drugs, but

before they had advised him of what they had found, Defendant said to himself “Nine


1
 Besides serving his nine-year sentence on the cocaine conviction, Defendant spent two-
and-one-half years incarcerated on a federal money-laundering conviction.
                                              5
Years, Julius. Nine Years.” That statement would make little sense to the jury except

that Defendant had previously been convicted on a cocaine charge and sentenced to nine

years’ imprisonment. This statement is compelling evidence of knowledge.

       In our view, a reasonably competent attorney could have thought that raising the

Rule 404(b) claim on appeal would do little more than distract this court from more

valuable arguments. And this appears to be what Defendant’s counsel on direct appeal

decided as well. She submitted in the § 2255 proceeding an affidavit explaining why she

did not raise the issue on appeal. It stated in part: “After reviewing possible claims for

Mr. Turrentine’s appeal, I decided to focus on challenges to the trooper’s alleged basis

for the traffic stop and the trooper’s alleged justification to prolong the detention.”

Teresa K. Brown Aff. ¶ 3 (D. Ct. Doc. 142-2). Notably, succeeding on the issue that was

raised would have led to suppression of the only physical evidence and in all likelihood

would have ended the prosecution against Defendant. Because the Rule 404(b) claim

was not clearly meritorious, we must give “deferential consideration” to this strategic

choice by his counsel on direct appeal. Cargle, 317 F.3d at 1202. We cannot say that

this was deficient performance.

       We AFFIRM the district court’s denial of Defendant’s claim of ineffective

assistance of appellate counsel for failure to raise the Rule 404(b) issue.

       We also DENY a COA on the two other issues raised in this court by Defendant.

He relies on Rodriguez v. United States, 135 S. Ct. 1609 (2015), to challenge the

extended detention of his vehicle; but on his direct appeal we held that continuation of
                                              6
the stop was supported by reasonable suspicion. See Turrentine, 542 F. App'x at 720.

And he challenges the failure of his counsel to appeal the district court’s exclusion of

impeachment evidence on a collateral matter; but the court’s ruling was clearly within its

proper discretion.

       Appellant’s motion to proceed in forma pauperis is GRANTED.



                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge




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