United States v. Macaulay ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 1, 2006
Charles R. Fulbruge III
Clerk
No. 05-51005
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLUBANJI MILTON MACAULAY, also known as Benji Macaulay,
also known as Reginald Eugene Harris,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(3:04-CV-53 )
(3:01-CR-368)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Olubanji Milton Macaulay was convicted by
a jury on three counts of perjury and five counts of falsely
asserting that he was a United States citizen. Macaulay filed a
motion to vacate, set aside, or correct his sentence, pursuant to
28 U.S.C. § 2255. The district court denied Macaulay’s motion but
granted a certificate of appealability (COA) on the issue whether
his trial counsel rendered ineffective assistance by interfering
with his right to testify.
*
Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
To prevail on a claim of ineffective assistance of counsel,
Macaulay must show that counsel’s performance was deficient and
that the deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687-94 (1984). Failure to establish
either deficient performance or prejudice is fatal to the claim.
Id. at 697.
The district court determined that counsel’s advice against
testifying did not render his performance deficient, considering
Macaulay’s prior convictions involving mendacity and the lack of
evidentiary support for his claim of citizenship. Macaulay states
that he would have testified that he had lied in the past but that
he sincerely believed in his citizenship. He acknowledges that he
had no evidence to support this claim, either documents or
testimony. Given his prior criminal history, his lack of
evidentiary support, and the anticipated nature of his potential
testimony, counsel’s advice against testifying was sound trial
strategy. See United States v. Mullins, 315 F.3d 449, 453-54 (5th
Cir. 2002).
The district court’s ruling, including the sentence imposed,
are
AFFIRMED.
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