United States v. Nelson ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40097
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARNOLD DWAYNE NELSON,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(6:94-CR-11)
_________________________________________________________________
November 21, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Arnold Dwayne Nelson appeals his conviction for being a
felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). For the reasons set forth below, we affirm the
conviction.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
I. BACKGROUND
A. Facts
On Christmas Eve, 1993, while on routine traffic patrol,
Texas State Trooper Bruce Roberts stopped a yellow Oldsmobile
Cutlass for speeding. The driver of the Cutlass, Arnold Nelson,
told Roberts that he had left his driver's license at home. The
car was occupied by an infant and two additional adults--Billy
Ray Knox and a woman identified as Nelson's girlfriend. No one
could produce a driver's license. Roberts conducted a vehicle
registration search and radioed for criminal history checks.
When the dispatcher reported that Nelson and Knox had criminal
histories, Roberts called for a back-up unit and Troopers Scott
Lee and Merle Whitley responded. Roberts testified at trial that
during the ensuing interview, Nelson told him that he had
purchased the car at a police pound in Dallas for $200.2 Nelson
denied that there were guns and drugs in the car. He offered to
allow Roberts to search the car, but stated that he didn't have a
key to the trunk.3 During a search of the vehicle, Roberts found
marijuana in the passenger compartment. Nelson and Knox were
arrested for possession of marijuana, and advised of their rights
2
The car was titled to another individual and Nelson
testified at trial that he had borrowed the car from Eddie Ashley
several hours prior to the traffic stop.
3
Nelson testified at trial that, after borrowing the car
from Ashley, he had placed his belongings in trunk. Nelson
stated that he did not notice that there were guns in the trunk
at that time.
2
at that time. They were transported to the Hopkins County Jail
and the Oldsmobile Cutlass was impounded.
After Nelson and Knox were taken into custody, Knox told
Roberts that he thought that there were guns in the trunk of the
car. Roberts testified that, when questioned about this, Nelson
told him that the trunk contained three loaded guns which he had
purchased for $50 each on a street corner. According to Roberts,
Nelson stated that he was taking them to friends in Arkansas who
needed them for protection.4 Since having his rights read to him
at the time of his arrest approximately one hour earlier, Nelson
had not been advised of his rights again before he gave this
statement. Roberts called for a locksmith but Nelson said that
he would open the trunk himself. Nelson accompanied Roberts and
Lee to the garage area of the jail where Nelson retrieved the
trunk key from an infant's shoe hanging from the rear-view mirror
of the Oldsmobile Cutlass. Nelson put the key in the trunk lock
and Lee opened the trunk. During a search of the trunk, Roberts
and Lee found three loaded guns and a bullet-proof vest hidden
under some clothing.5
4
Nelson denied knowledge of the guns at trial.
5
A Bureau of Alcohol, Tobacco, and Firearms special agent
testified at trial that the three guns had been manufactured
outside of the State of Texas.
3
B. Procedural History
Because he had previously been convicted for felony burglary
and theft offenses, Nelson was charged with being a felon in
possession of a firearm under 18 U.S.C. § 922(g)(1).6 Nelson
moved to suppress the evidence seized during the searches of the
car and the statements he made at the jail after his arrest.
After a hearing, the district court entered an order denying
Nelson's motion. Nelson was tried and the jury returned a guilty
verdict. The district court sentenced him to a term of
imprisonment of 86 months, a three-year term of supervised
release, and a special assessment of $50.00. Nelson brings this
appeal.7
6
Section 922(g)(1) of Title 18 of the United States Code
provides, in pertinent part:
(g) It shall be unlawful for any person--
(1) who has been convicted in any court of a crime
punishable by a term of imprisonment for a term exceeding one
year . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate commerce or foreign
commerce.
18 U.S.C. § 922(g)(1).
7
Although he is represented by counsel, Nelson has moved
for leave to file a supplemental pro se brief. He argues that
otherwise he will be denied "his constitutional right to equal
access to the appellate process" because his attorney's brief
does not address all of the issues that he wishes to raise. A
defendant in a criminal trial has the right to assistance of
counsel, and the right to represent himself. United States v.
Daniels, 572 F.2d 535, 540 (5th Cir. 1978). "The criminal
defendant does not have the right, however, to a 'hybrid
representation,' partly by counsel and partly by himself." Id.Nelson does not have a constitutional right to file his own brief
in addition to that filed by his counsel. See Smith v. Collins,
4
II. ANALYSIS
Nelson advances five grounds for reversal of his conviction.
His first argument on appeal is that the trial judge should have
suppressed the evidence obtained during the searches of the car.
Nelson also argues that the statements he made at the jail after
his arrest should have been suppressed. Nelson contends that the
evidence was insufficient to support his conviction. He
maintains that the prosecutor engaged in improper jury argument
by attempting to shift the burden of proof from the government.
Finally, Nelson argues that he received ineffective assistance of
counsel because his attorney failed to make an opening statement.
A. Search of Nelson's Vehicle
Nelson contends that the district court erred in finding
that he voluntarily consented to the initial search of the
Oldsmobile Cutlass. He further argues that because the search of
the passenger compartment was illegal, the search of the trunk
after his arrest was also constitutionally infirm. Therefore,
Nelson asserts, any evidence found during the searches of the car
should have been suppressed. We review a district court's ruling
on a motion to suppress evidence by employing a two-tier
standard, "reviewing the district court's factual findings for
clear error and its ultimate conclusion as to the
977 F.2d 951, 962 (5th Cir. 1992) (citing Daniels, 572 F.2d at
540; Neal v. Texas, 870 F.2d 312, 315-16 (5th Cir. 1989), cert.
denied, 114 S. Ct. 97 (1993)). Therefore, Nelson's motion for
leave to file a supplemental pro se brief is denied.
5
constitutionality of the law enforcement action de novo." United
States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir. 1993).
All of the evidence introduced at the suppression hearing and at
trial is viewed in the light most favorable to the prevailing
party. United States v. Ponce, 8 F.3d 989, 995 (5th Cir. 1993).
Applying this standard of review, we conclude that the trial
judge did not clearly err in finding that Nelson consented to the
original search of the car.
We assess the legality of a search conducted during a
traffic stop by determining whether at its inception the
officer's action was justified and whether the officer's action
was reasonably related in scope to the circumstances which
precipitated the interference in the first place. United States
v. Kelley, 981 F.2d 1464, 1467 (5th Cir.), cert. denied, 113
S. Ct. 2427 (1993) (citing Terry v. Ohio, 392 U.S. 1, 19-20
(1968)).
Trooper Roberts testified that he stopped Nelson initially
for speeding. Nelson does not deny that the stop was justified
at its inception. He argues, however, that his consent was
coerced. Nelson contends that the voluntariness of his consent
was vitiated because he consented while being detained for not
producing a driver's license. The government has the burden of
proving by a preponderance of the evidence that consent to search
was given freely and voluntarily. United States v. Hurtado, 905
F.2d 74, 76 (5th Cir. 1990) (en banc) (citing United States v.
Matlock, 415 U.S. 164, 177 n.14, (1974)). The Supreme Court has
6
resolved that voluntariness of consent is a question of fact to
be determined from a totality of the circumstances. Schneckloth
v. Bustamonte, 412 U.S. 218, 227 (1973).
To determine whether consent to a search was voluntary, we
generally focus on the following six factors:
(1) the voluntariness of the defendant's custodial status;
(2) the presence of coercive police procedures; (3) the
extent and level of the defendant's cooperation with the
police; (4) the defendant's awareness of his right to refuse
to consent; (5) the defendant's education and intelligence;
and (6) the defendant's belief that no incriminating
evidence will be found.
United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir.
1988) (citations omitted). All six factors are relevant, but
none is dispositive or controlling. Id. The district court
invoked these six factors and found no evidence that Nelson's
consent was involuntarily given. We review the district court's
findings respecting voluntariness for clear error. Olivier-
Becerril, 861 F.2d at 425-26. Moreover, "[w]here the judge bases
a finding of consent on the oral testimony at a suppression
hearing, the clearly erroneous standard is particularly strong
since the judge had the opportunity to observe the demeanor of
the witnesses." United States v. Sutton, 850 F.2d 1083, 1086
(5th Cir. 1988).
After reviewing the record, we conclude that the district
court's finding that Nelson consented to the original search was
not clearly erroneous. Although at the time of his consent
Nelson was not free to leave, the circumstances of the traffic
stop cannot be characterized as coercive. Roberts had not placed
7
him under arrest and there is no evidence in the record to
suggest that the officers used coercive methods to obtain
Nelson's consent to search his car. Although Nelson was not
advised that he had a right to withhold his consent, neither was
he pressured to give his consent. Nelson invited Roberts to
search the car before Roberts had a chance to ask him for his
consent. Furthermore, not only is "[p]roof of knowledge of the
right to refuse consent . . . not required to show
voluntariness," United States v. Davis, 749 F.2d 292, 296 (5th
Cir. 1985), but Nelson had an extensive criminal history and
presumably he knew that he had the right to refuse consent.8
Because Nelson had denied that he had a trunk key, Roberts
reasonably interpreted Nelson's consent to be limited to the
passenger compartment of the car. There is nothing in the record
to indicate that Nelson is unsophisticated or intellectually
impaired and Nelson expressed the belief that a search would
uncover no incriminating evidence.
The district court also found that the search of Nelson's
trunk fell within the automobile exception. Where the police
have probable cause to believe that a vehicle contains seizable
evidence, the automobile exception allows police to conduct a
search without a search warrant. California v. Carney, 471 U.S.
8Nelson also suggests that consent is invalid unless it is
in writing. We have consistently recognized the validity of oral
consent in this area. See United States v. McSween, 53 F.3d 684,
687-88 (5th Cir. 1995); United States v. Lopez, 911 F.2d 1006,
1010-1011 (5th Cir. 1990).
8
386 (1985); United States v. Ross, 456 U.S. 798 (1982). If
probable cause exists to justify the search of a vehicle, then
every part of the vehicle and its contents that may conceal the
seizable evidence may be searched. Ross, 456 U.S. at 825. Once
marijuana was found, Roberts had probable cause to search the
entire vehicle. United States v. McSween, 53 F.3d 684, 686-87
(5th Cir.), cert. denied, 116 S. Ct. 199 (1995). Additionally,
whenever a warrantless at-the-scene search is permissible, the
police may choose instead to seize the car and search it at the
police station. United States v. Kye Soo Lee, 962 F.2d 430, 438
(5th Cir. 1992) (citing inter alia Texas v. White, 423 U.S. 67,
68 (1975)), cert. denied, 113 S. Ct. 1057 (1993). The district
court found that, once the state troopers had discovered
marijuana in the passenger compartment, they had probable cause
to search the rest of the car. These findings are supported by
the record. The district court's denial of Nelson's request to
suppress the firearms found during the search was not clearly
erroneous.
B. Nelson's Custodial Statements
Nelson contends that, because he never waived his Miranda9
rights, the district court should have suppressed the
incriminating statements he made at the jail after his arrest.
9
The Fifth Amendment privilege against self-incrimination
requires that a suspect subject to custodial interrogation be
warned of his rights not to incriminate himself. Miranda v.
Arizona, 384 U.S. 436 (1966).
9
We have stated that "[i]t is axiomatic that an accused must be
informed of his Miranda rights in a way that ensures his knowing,
intelligent and voluntary exercise or waiver thereof." United
States v. Collins, 40 F.3d 95, 98 (5th Cir. 1994), cert. denied,
115 S. Ct. 1986 (1995). Nelson argues that his jailhouse
statements, and--according to the "fruit of the poisonous tree"
doctrine--all evidence derived from them, should be suppressed
because he had not been re-advised of his rights before being
questioned at the jail, and because it was coercive for Roberts
to send for a locksmith. As set out in the previous section, we
review the ruling of a district court on a motion to suppress by
applying a two-tier standard. United States v. Jenkins, 46 F.3d
447, 451 (5th Cir. 1995). The district court's factual findings
are reviewed for clear error and its ultimate conclusion about
the law enforcement action is reviewed de novo. Chavez-
Villarreal, 3 F.3d at 126. The evidence is viewed in the light
most favorable to the prevailing party. Jenkins, 46 F.2d at 451.
We conclude that the district court did not clearly err in
denying the motion to suppress the incriminating statements
Nelson made while in custody.
Whether Nelson waived his Miranda rights is a factual
question for the district court. Collins, 40 F.3d at 98-99. In
responding to a motion to suppress a confession, the Government
bears the burden of showing that the defendant was informed of
his Miranda rights and that "his waiver thereof and the resultant
confession were the ``product of a free and deliberate choice.'"
10
Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). A
waiver may be direct or it may be inferred from the actions and
words of the person interrogated. Id. at 99. However, merely
answering questions is not enough to show waiver. Waiver of
Miranda rights must be demonstrated by some affirmative action.
Id.
The district court found that, based upon his statements and
actions, Nelson had voluntarily waived his Miranda rights.
Roberts testified that when Nelson was arrested, he was advised
of his right to remain silent. Notwithstanding the passage of
one hour between the reading of the Miranda rights and his
interrogation at the jail, there was no basis for concluding that
Nelson did not understand that he had the right to remain
silent.10 Nelson argues that the district court erred in failing
to determine whether Roberts "scrupulously honored" Nelson's
right to remain silent, as mandated in Charles v. Smith, 894 F.2d
718, 725-26 (5th Cir.), cert. denied, 498 U.S. 957 (1990).
Nelson's reliance on Charles is misplaced. In Charles, a police
officer persisted in questioning a suspect just minutes after the
suspect asserted his right to remain silent for a second time.
Charles teaches that a court must examine whether a suspect's
10
The district court found that the delay of about one
hour between the reading of his Miranda rights and the custodial
interrogation resulting in the incriminating statements was not
sufficient to render Nelson's waiver unintelligent. In making
this determination, the trial judge relied on the fact that the
one hour delay was the result of the travel time between the
scene of the traffic stop and Nelson's arrival and booking at the
jail.
11
right to cut off questioning was scrupulously honored "[w]hen a
suspect . . . halts police interrogation by asserting the right
to remain silent." Id. The district court determined that at no
time did Nelson invoke his right to remain silent.
Nelson voluntarily chose to speak with Roberts after he had been
advised of his right not to do so. The district court found that
Nelson's offer to open the trunk for Roberts was not coerced by
the presence of a locksmith. He voluntarily retrieved the key
from its hiding place in the Oldsmobile Cutlass and he placed it
in the trunk lock. Based on Nelson's statements and conduct, the
determination of the district court that Nelson waived his
Miranda rights is not clearly erroneous. Because we find no
clear error in the district court's determination that Nelson
validly waived his rights, we need not address Nelson's argument
that evidence derived from his incriminating statements must be
suppressed as "fruit of the poisonous tree."
C. Sufficiency of the Evidence
Nelson argues that the evidence was insufficient to support
his conviction. We disagree. The standard of review in
assessing a challenge to the sufficiency of the evidence in a
criminal case is "whether a rational juror could have found each
element of the crime proven beyond a reasonable doubt."11
11
We apply this standard of review because Nelson timely
moved for judgment of acquittal. United States v. Landry, 903
F.2d 334, 338 (5th Cir. 1990). When a defendant fails to
preserve a sufficiency claim a stricter standard is applied. See
12
Collins, 40 F.3d at 99; see also Jackson v. Virginia, 443 U.S.
307, 319 (1979). In evaluating the sufficiency of the evidence,
this court views all evidence and all reasonable inferences drawn
from it in the light most favorable to the government. United
States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc),
aff'd on other grounds, 462 U.S. 356 (1983).
Conviction for a violation of § 922(g)(1) requires proof
beyond a reasonable doubt that the defendant is a convicted
felon, who knowingly possessed a firearm, and that his possession
was in or affecting interstate commerce. United States v. Dancy,
861 F.2d 77, 81 (5th Cir. 1988). Nelson contends that the
government failed to prove that he was in knowing possession of a
firearm. He suggests that the guns could have been placed in the
trunk by Knox. Nelson argues that the Government offered no
direct evidence that he possessed the guns. Possession of a
firearm, however, may be actual or constructive. United States
v. Wright, 24 F.3d 732, 734 (5th Cir. 1994). We have defined
constructive possession as "ownership, dominion, or control over
the contraband itself or dominion or control over the vehicle or
premises in which the contraband is concealed." Id.; see United
States v Orozco, 715 F.2d 158, 161 (5th Cir. 1983) (finding
constructive possession of a firearm where defendant-passenger
did not own vehicle, but had kept it at his home). We have
United States v. Galvan, 949 F.2d 777, 782-83 (5th Cir. 1991)
(applying "manifest miscarriage of justice" standard where
defendant failed to move for a directed verdict or a judgment of
acquittal).
13
pointed out that, "[i]n the nature of things, proof that
possession of contraband is knowing will usually depend on
inference and circumstantial evidence." United States v.
Richardson, 848 F.2d 509, 514 (5th Cir. 1988) (affirming
conviction for cocaine possession where the proof was not
conclusive but constituted substantial evidence when "taken as a
whole"). Furthermore, "knowledge of the presence of the
contraband may ordinarily be inferred from the exercise of
control over the vehicle in which it is concealed." Id. at 513.
Nelson was the driver of the Oldsmobile Cutlass. Roberts
testified that Nelson told him he was the owner of the vehicle.
A reasonable juror could conclude that Nelson was in constructive
possession of the firearms found in the trunk. Moreover, Roberts
testified that Nelson admitted owning the guns and helped Roberts
open the trunk. There was ample evidence from which a reasonable
juror could conclude that Nelson had knowingly possessed the
guns. See United States v. Knezek, 964 F.2d 394, 400 (5th Cir.
1992) (finding no plain error in illegal firearms conviction
where defendant was driver of vehicle and admitted owning guns);
United States v. Speer, 30 F.3d 605, 612 (5th Cir. 1994)
(concluding that driver constructively possessed firearm in
physical possession of front-seat passenger because driver
admitted that gun was in vehicle so that he would not be "ripped-
off"), cert. denied, 115 S. Ct. 603 (1994), and cert. denied, 115
S. Ct. 768 (1995).
14
D. Prosecutor's Jury Argument
Nelson complains that prosecutorial misconduct during
closing arguments deprived him of a fair trial. He argues that
the prosecutor attempted to improperly shift the burden of proof
from the government to the defendant by calling for the jury to
make an inference from Nelson's failure to call Billy Ray Knox to
testify. Only when it is both inappropriate and harmful,
however, does a prosecutor's comment to the jury constitute
reversible error. United States v. Lowenberg, 853 F.2d 295, 301
(5th Cir. 1988), cert. denied, 489 U.S. 1032 (1989); see United
States v. Young, 470 U.S. 1, 16 (1985). When a contemporaneous
objection is made, the standard of review on appeal is whether
the defendant's substantial rights have been prejudiced. United
States v. Fierro, 38 F.3d 761, 771 (5th Cir. 1994), cert. denied,
115 S. Ct. 1388 (1995), and cert. denied, 115 S. Ct. 1431 (1995).
A criminal conviction will not be lightly overturned based on a
prosecutor's comments standing alone. Lowenberg, 853 F.2d at
302. "[T]he remarks must be examined within the context of the
trial to determine whether the prosecutor's behavior amounted to
prejudicial error." Young, 470 U.S. at 12. We find that the
prosecutor's remarks did not deprive Nelson of a fair trial.
During his closing argument, Nelson's counsel made the
following comments:
What else didn't they bring you? You know, we talked about
this Billy Knox. Where is he? The government has the
burden of proof. Why didn't they bring him in here?
Evidently, the government wants to rely on the fact that Mr.
Knox had some conversation previously with Mr. Nelson, where
15
Mr. Nelson won't even take the rap. Do y'all remember those
questions? If that's the case, wouldn't that have been
another admission by Mr. Nelson? But he's not here.
Wouldn't that help you make your decision? . . . They've not
brought you Billy Knox; so, we don't know if Billy Knox could
have opened that trunk or not.
During rebuttal, the prosecutor made the following comments:
[Defense counsel] pointed out to you that Mr. Knox is not
here, and he left the impression, ladies and gentlemen, that
-- that that was some kind of -- of mistake on our part, not
to have him here. Well, I would simply point out to you
that the defendant in this case, as in any case, has the
same subpoena power that the prosecution has, and that if
Mr. Knox were gonna help their side, I'm sure they would
have subpoenaed him and had him here were he available.
At this point, Nelson objected that the argument improperly
suggested that the defense bore the burden of proof. The
district court overruled the objection, stating:
In a civil case, I testify that if the witnesses are equally
available to either side, then neither side can make
anything of the fact that the witness hasn't been called. I'm
inclined to agree that that same instruction is proper in a
criminal case.
We have noted that "[c]ounsel is accorded wide latitude
during closing argument, and this court gives deference to a
district court's determination regarding whether those arguments
are prejudicial and/or inflammatory." United States v. Palmer,
37 F.3d 1080, 1085 (5th Cir. 1994), cert. denied, 115 S. Ct. 1804(1995). Three factors are considered to determine whether
serious doubt is cast upon the correctness of the jury's verdict:
"(1) the magnitude of the prejudicial effect of the prosecutor's
remarks, (2) the efficacy of any cautionary instruction by the
judge, and (3) the strength of the evidence supporting the
conviction." Id.16
With regard to factor (1), we find that the prejudicial
effect of the prosecutor's remarks was negligible. The comments
of Nelson's counsel invited a response; the prosecutor was
entitled to respond to the statements regarding Knox's absence.
We have explained that "[a] defendant cannot complain on appeal
of alleged errors invited or induced by himself, particularly
where, as here, it is not clear that the defendant was prejudiced
thereby." United States v. Lewis, 524 F.2d 991, 992 (5th Cir.
1975) (finding no error where challenged testimony was designed
to correct insinuation of defense counsel during cross-
examination), cert. denied, 425 U.S. 938 (1976).
With regard to factor (2), we find that the district court
properly instructed the jury as to the burden of proof. The
judge gave the following instructions to the jury:
The burden is always upon the government -- upon the
prosecution to prove guilt beyond a reasonable doubt. This
burden never shifts to a defendant; for the law never
imposes upon a defendant in a criminal case the burden or duty
of calling any witnesses or producing any -- evidence.
Where both parties have commented in closing argument on the
failure of the other side to call a particular witness, and the
defendant argues on appeal that the prosecutor's comments
improperly shifted the burden of proof, we have found "neither
error nor any indication of bias." United States v. Jordan, 49
F.3d 152, 159 (5th Cir. 1995) (citing United States v. Ivey, 550
F.2d 243, 244 (5th Cir.), cert. denied, 431 U.S. 943 (1977)). In
Jordan, we found that the prosecution's remarks were not
prejudicial because the prosecution's argument was responsive to
17
the defendant's argument and because the district court properly
instructed the jury on the Government's burden of proof. Id.Similarly, in the instant case, we find that Nelson's counsel
invited a response by the prosecutor and that the trial judge
properly instructed the jury.
Additionally, we find that factor (3)--the strength of the
evidence supporting the conviction--weighs against Nelson.
Notwithstanding the absence of direct evidence that Nelson
possessed the firearms, there is a substantial amount of credible
evidence pointing to his guilt. We conclude that prosecutorial
misconduct during closing arguments did not deprive Nelson of a
fair trial.
E. Ineffective Assistance of Counsel
Nelson argues that he received ineffective assistance of
counsel because his attorney failed to make an opening statement.
To prevail on this claim, Nelson "must show that: (1) the
attorney's representation fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that
except for the attorney's unprofessional errors, the results of
the proceeding would have been different." United States v.
Kinsey, 917 F.2d 181, 183 (5th Cir. 1990) (citing Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984)). Nelson has not
demonstrated ineffective assistance because he has not shown that
he was prejudiced by the attorney's failure to make an opening
statement. Attorney error is prejudicial if it renders the
18
result of the proceeding unreliable or the proceeding
fundamentally unfair. Although Nelson argues generally that a
reasonable attorney must take advantage of the opportunity to
influence the jury provided by the opening statement, he does not
suggest what the attorney should have said or why he was
prejudiced by the attorney's failure to avail himself of that
opportunity.
III. CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the
district court without prejudice to Nelson's right to raise his
ineffective-assistance-of-counsel argument in a proper proceeding
under 28 U.S.C. § 2255.
AFFIRMED.
19