United States v. Fortner , 117 F. App'x 244 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4191
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES E. FORTNER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-03-110)
Submitted: August 30, 2004 Decided: December 8, 2004
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David D. Perry, LAW OFFICE OF DAVID D. PERRY, Huntington, West
Virginia, for Appellant. Charles T. Miller, Acting United States
Attorney, Stephanie L. Haines, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Edward Fortner was convicted of aiding and
abetting possession with intent to distribute marijuana, in
violation of 21 U.S.C. §§ 2, 841(a)(1) (2000). On appeal, Fortner
argues that his trial counsel did not provide effective assistance
and therefore his conviction should be reversed. Finding no error,
we affirm the judgment.
On September 21, 2000, Charles Fortner was driving a van
on a route in West Virginia. Law enforcement officers were
conducting surveillance and watching for the van. A law
enforcement officer had received a tip from a confidential
informant that a van would be taking a specified route and would be
carrying drugs intended for distribution. According to the
appellate briefs, the tip was provided by a confidential informant
who was deceased at the time of trial. The court determined that
the information relayed to the officers by the confidential
informant could not be introduced at trial.
Officers picked up Fortner’s van, followed it, and
stopped it for the traffic violation of speeding, forty-five mph in
a twenty-five mph zone. The officer confirmed that Fortner was the
registered owner of the van. He had a passenger, Caldwell Skaggs,
traveling with him. When the officers approached the van they
detected a very strong air freshener smell. An officer testified
that air freshener is a common masking agent used to disguise
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strong smells. A canine unit was brought to the scene and alerted
on the passenger-side sliding door of the vehicle. Fortner did not
consent to a search of the vehicle, and a search warrant was
obtained. A search of the vehicle revealed a loaded Derringer
pistol within reach behind an access panel and seventy-four pounds
of marijuana split between two bags in the rear of the vehicle. A
small amount of cocaine was also found on the defendant at the time
of his arrest.
A jury found Fortner guilty as charged, but found the
passenger, Skaggs, not guilty of the same charges. Fortner
obtained new counsel after trial and filed post-trial motions
challenging his conviction on several bases, including ineffective
assistance of counsel. The district court denied the motion and,
in ruling on the ineffective assistance of counsel claim, stated
that it was “clearly not the case” that counsel’s representation
fell below an objective standard of reasonableness, and that, even
if counsel had taken all steps identified in the motion, the result
would not have been different. Fortner was subsequently sentenced
to a term of imprisonment of forty-one months, a three-year term of
supervised release, a $500 fine, and a $100 special assessment fee.
Claims of ineffective assistance of counsel are generally
not cognizable on direct appeal. To allow for adequate development
of a record, a defendant must bring his claim in a 28 U.S.C. § 2255(2000) motion unless the record conclusively establishes
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ineffective assistance. United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997).
To prevail on a claim of ineffective assistance of
counsel, Fortner must show both that counsel’s performance was
inadequate and that the deficient performance was prejudicial. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under the
first prong of Strickland, a movant must show that counsel’s
performance fell below an objective standard of reasonableness
under prevailing professional norms. Id. at 688. In evaluating
counsel’s performance, the court indulges a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance. Id. at 689. Further, the reviewing court
must evaluate the reasonableness of counsel’s performance within
the context of the circumstances at the time of the alleged errors,
rather than with the benefit of hindsight. Id. at 690.
Fortner argues that counsel failed to fully investigate
the circumstances surrounding probable cause for the search
warrant. In particular, Fortner points to the dismissal of the
speeding ticket, that the confidential informant was deceased and
therefore his indicia of reliability was untested, and the
possibility of ascertaining scientific studies on the reliability
of the police canine unit used in the search. Fortner also argues
that it was ineffective assistance to fail to file a suppression
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motion based on the Government’s potential use of hearsay evidence
under Fed. R. Evid. 804 in relation to proving the reliability of
the deceased confidential informant. Fortner concedes that this
issue was raised and decided by the district court on the day of
trial, but argues that the issue required additional preparation
and attention and it was ineffective assistance for counsel to fail
to address the issue earlier. Finally, Fortner asserts that
counsel failed to call any witnesses on his behalf and failed to
cross-examine any of the four Government witnesses.
We find that Fortner has not proven that counsel’s
performance fell below an objective standard of reasonableness or
that, but for counsel’s performance, the result would have been
different. See Strickland, 466 U.S. at 687-88. First, Fortner did
not include full transcripts, or even complete excerpts, in the
joint appendix to support his assertions.
From the evidence before us it is difficult to determine
to what degree defense counsel challenged the validity of the
information supporting the search warrant and traffic stop. The
district court docket sheet reflects that counsel did not file a
pre-trial motion; however, the transcript selections and the
appellate briefs indicate that, before trial, the district court
held a hearing on the admissibility of evidence relating to the
confidential informant. It is also impossible to determine what,
if any, action defense counsel took or should have taken, during
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the trial because there are no relevant transcripts included in the
joint appendix supporting Fortner’s assertions.
Finally, it is unlikely that, even if counsel had
challenged the stop and the admissibility of the evidence found in
the van and cross-examined the Government witnesses, the result
would have been different, nor was it error by the district court
to not hold an evidentiary hearing on the matter. Fortner states
that counsel should have called witnesses on his behalf, but does
not identify the potential witnesses or indicate their relevance.
The evidence found in the van pursuant to the search warrant based
upon probable cause and that was introduced at trial is persuasive
evidence that Fortner possessed marijuana with the intent to
distribute it, and it is unlikely that the result would have been
different if counsel had engaged in the defense of the case that
Fortner suggested.
We therefore conclude that the record on appeal does not
conclusively establish ineffective assistance of counsel and affirm
the judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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