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

                                                FILED
                                                                 June 30, 2009
                                No. 07-60943
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JIMMY DOUG SHELTON

                                            Defendant-Appellant


                 Appeal from the United States District Court
                   for the Northern District of Mississippi
                            USDC No. 3:05-CV-30
                           USDC No. 1:00-CR-127-1


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Jimmy Doug Shelton pled to tax fraud largely because of evidence obtained
from the marital home and delivered to authorities by his estranged wife Cheryl.
She no longer lived in the residence but retained access to it with Jimmy’s
knowledge and acquiescence.1 Shelton conditioned his guilty plea on a reserved


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
      1
       The facts concerning Cheryl’s conduct, which are not in dispute, are
provided in our opinion on direct appeal. See U.S. v. Shelton, 337 F. 3d 529, 530-
                                   No. 07-60943

right to appeal the district court’s denial of his motion to suppress the evidence
that she removed from the marital residence and given to law enforcement
officials. When Shelton appealed, we affirmed the district court’s denial of the
motion to suppress on the grounds that Cheryl had “common authority to
consent to the government’s search, i.e., to remove the bingo operation materials
from Shelton’s house and deliver them to the government.” 2 Apparently, all but
two notebook pages out of all these materials were copied or photographed and
were returned; the two pages were apparently retained by the government.
      Shelton now essentially argues that the two pages where he kept records
of his illegal activity were permanently “seized” contrary to the Fourth
Amendment, and that the “intellectual property” of the rest of the papers was
also unconstitutionally seized. This 28 U.S.C. § 2255 motion argues that counsel
at the trial and appellate levels provided ineffective assistance by failing to
challenge this “permanent seizure” of the evidence that was removed from his
home by Cheryl. The district court denied relief, holding that the seizure was
reasonable based on similar grounds that the search was reasonable.
Nevertheless, the district court granted a certificate of appealability as to
“[w]hether . . . the seizure of evidence . . . violated the Fourth Amendment
prohibition against unreasonable searches and seizures.”
      Shelton contends that the government’s permanent seizure of the evidence
removed from his home by Cheryl was unconstitutional and thus counsel
performed ineffectively by challenging only the search. He contends that no
exception to the warrant requirement applies for this seizure and that the
nature of the evidence precludes application of the plain view doctrine; he argues
that even if a temporary seizure of the property was constitutional—which our




31 (5th Cir. 2003).
      2
          Shelton, 337 F. 3d at 538.

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decision on direct appeal has already settled 3 —the permanent seizure without
a warrant was unconstitutional and if properly raised would have led to
suppression at trial.
      Shelton’s ineffective assistance arguments regarding trial and appellate
counsel are governed by Strickland.4 Shelton must show that counsel’s
performance was deficient and that the deficient performance prejudiced the
defense.5 This he does not and clearly cannot do. Even assuming that the
seizure has not already been fully litigated (search and seizure inquiries are
often collapsed in cases where the analytical distinction is immaterial), and even
assuming the evidence could only be temporarily and not permanently seized by
the government in this case without a warrant—i.e., that Cheryl could not
consent to permanent seizure even though we have held she could certainly
consent to temporary seizure—Shelton cannot show that the permanent as
opposed to the temporary seizure caused any conceivable prejudice to his
criminal case. The notion that the evidence would have been suppressed is
fanciful. Our previous opinion made clear that the search for and the temporary
seizure of the documents was legal; that is, the government could lawfully read
and use these documents for its investigative and prosecutorial purposes, which
surely includes photocopying them. No “intellectual property” interest could be
thereby infringed—the government did not debase the value of any intellectual
property in these documents. As to the two notebook pages, absent unusual
circumstances, evidence against a defendant lawfully obtained by the



      3
       It might well settle the permanent seizure issue, too. It concluded:
“[T]oday we hold that Cheryl possessed common authority to consent to the
government’s search, i.e., to remove the bingo operation materials from Shelton’s
house and deliver them to the government . . . .” Id. at 538.
      4
          Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008).
      5
          See Strickland v. Washington, 466 U.S. 668, 687 (1984).

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government can be lawfully retained for a criminal prosecution.6 Retaining
documents tending to demonstrate Shelton’s guilt was not an unreasonable
seizure by the government.       Trial or appellate counsel urging Shelton’s
preservation of some underlying ownership in the relevant papers would not
have had any effect on his conviction.
      We AFFIRM.




      6
        The facts of countless cases establish this proposition. See, e.g., U.S. v.
Smith, 930 F.2d 1081, 1084 (5th Cir. 1991) (“An officer obtained Shyane Smith's
written consent to search the premises. Pursuant to this search, the officers
seized a file containing various papers, including telephone bills for March and
April at that address bearing the defendant's name. The officers also seized
sexually explicit photos of the defendant.”).

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