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Carter, Leonard v. United States , 133 F. App'x 321 ( 2005 )


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  •                               UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued April 12, 2004
    Decided May 19, 2005
    Before
    Hon. DIANE P. WOOD, Circuit Judge
    Hon. TERENCE T. EVANS, Circuit Judge
    Hon. ANN CLAIRE WILLIAMS, Circuit Judge
    No. 03-2502
    LEONARD E. CARTER,                               Appeal from the United States District
    Petitioner-Appellant,               Court for the Eastern District of
    Wisconsin.
    v.
    No. 00-C-1412
    UNITED STATES OF AMERICA,
    Respondent-Appellee.                 Rudolph T. Randa,
    Chief Judge.
    ORDER
    On July 21, 1998, Leonard Carter was convicted by a jury for possession of a
    firearm by a felon and possession of marijuana. Following sentencing, Carter filed
    a motion pursuant to 
    28 U.S.C. § 2255
     to correct, vacate or set aside his sentence.
    The district court denied that motion, finding that Carter’s trial attorney rendered
    effective assistance and that any similar claim against his appellate counsel was
    moot. Carter appeals the district court’s denial of his § 2255 motion, arguing that
    his trial counsel performed deficiently by failing to: (1) stipulate to his prior felony
    convictions; (2) argue properly the effect of his three juvenile adjudications for
    armed robbery; and (3) challenge effectively the search warrant. Carter also claims
    No. 03-2502                                                                     Page 2
    his attorney on direct appeal rendered ineffective assistance by advising Carter to
    withdraw his appeal and for failing to pursue his Fourth Amendment, evidentiary
    and sentencing claims. Because the record on appeal fails to reveal either deficient
    performance by counsel or prejudice to Carter, we affirm the district court’s denial
    of his § 2255 motion.
    I. BACKGROUND
    On March 23, 1998, Milwaukee police officers executed a search warrant at a
    Milwaukee apartment and found the following items in one of the apartment’s two
    bedrooms: a small bag of marijuana, a .22 caliber Intratec pistol under the
    mattress, a .45 caliber Webley revolver in the closet, and unfired ammunition for
    both the .22 caliber and .45 caliber pistols. The defendant, Leonard Carter, who
    was alone in the apartment at the time of the search, told the officers that he had
    spent the night in the bedroom in which the weapons were found. During
    questioning, and before he was ever informed what type of guns were recovered,
    Carter was able to accurately describe the weapons. He also said that he would
    take responsibility for the .22 caliber pistol and the marijuana because he did not
    want to put them off on his girlfriend who lived in the apartment. Carter indicated
    that he found the .22 caliber handgun two weeks prior at the Westlawn Housing
    Project. He later admitted that he purchased the .45 caliber pistol on the street.
    On April 21, 1998, a grand jury indicted Carter in the Eastern District of
    Wisconsin, charging him with one count of felon in possession of a firearm and one
    count of possession of marijuana. After a trial, the jury convicted Carter of both
    counts. He was sentenced to 260 months imprisonment on the felon in possession
    count and 12 months for the marijuana count, with the sentences to run
    concurrently.
    Carter’s trial counsel, Mark Stern, withdrew, and this court appointed
    Michael Backes to represent the defendant in his direct appeal. In his opening
    brief, Backes raised a sufficiency of the evidence claim and an ineffective assistance
    of counsel claim. In his reply brief, however, Backes indicated that the appeal
    should be dismissed because the sufficiency of the evidence claim lacked merit and
    the ineffective assistance of counsel claim would be more appropriate in a 
    28 U.S.C. § 2255
     petition. This court ordered the appeal dismissed “with the understanding
    that [the dismissal was] without prejudice to presenting in a timely collateral
    attack any appropriate argument, including an argument that Carter did not
    receive effective assistance of counsel.” Backes then withdrew.
    Subsequently, Carter filed a pro se § 2255 petition and the court appointed
    Carter’s current counsel, who filed a supplemental brief on Carter’s behalf. On
    March 31, 2003, the district court denied Carter’s § 2255 motion. On appeal, Carter
    argues the following: trial counsel rendered ineffective assistance by failing to
    stipulate as to the nature of Carter’s prior convictions; trial counsel was ineffective
    for failing to object to the use of juvenile adjudications to enhance Carter’s sentence;
    No. 03-2502                                                                   Page 3
    trial counsel was ineffective for not challenging the search warrant; and appellate
    counsel rendered ineffective assistance by advising the defendant to dismiss his
    appeal.
    II. ANALYSIS
    In assessing ineffective assistance of counsel claims, this court employs the
    two-part test set forth in Strickland v. Washington, 
    466 U.S. 668
     (1984). That
    inquiry asks: (1) whether counsel’s performance fell below an objective standard of
    reasonableness; and (2) whether the defendant was prejudiced by counsel’s
    deficient performance. 
    Id. at 687
    . With regard to the objectively unreasonable
    performance element, the test is “highly deferential,” presumes reasonable
    judgment, and avoids second guessing counsel’s strategic decisions. United States
    v. Williams, 
    106 F.3d 1362
    , 1367 (7th Cir. 1997). Concerning the second prong, this
    court will find prejudice where there is a “reasonable probability that, but for
    counsel’s errors, the result of the proceeding would have been different.” 
    Id.
    A.    Trial Counsel’s Failure to Stipulate to Prior Convictions
    The jury convicted Carter under 
    18 U.S.C. § 922
    (g)(1), which generally
    prohibits felons from possessing firearms. For reasons unknown, Carter’s trial
    counsel did not accept the government's offer to stipulate to the fact that Carter had
    the requisite prior felony conviction under § 922(g). Instead, the government
    presented the jury with certified copies of two prior convictions, one for felony
    recklessly endangering safety and the other for felony possession with intent to
    distribute cocaine. Because the government’s stipulation would have shielded from
    the jury the substance of Carter’s prior convictions, as opposed to their mere
    existence, Carter contends that his trial counsel rendered ineffective assistance by
    failing to accept the government’s offer.
    Carter argues that the substance of a prior conviction is presumptively
    inadmissible, and relies principally on Old Chief v. United States, 
    519 U.S. 172
    (1997) for support. Old Chief held that a district court abused its discretion under
    the Federal Rules of Evidence by refusing to allow a defendant, prosecuted under §
    922(g), to concede the fact of his prior conviction. Id. at 174. We disagree with
    Carter’s assertion that Old Chief compels us to find that trial counsel performance
    was deficient because he did not stipulate to the prior conviction.
    We can only speculate as to why Carter’s trial counsel declined to stipulate.
    Carter may have refused to allow counsel to do so. See United States v. Holman,
    
    314 F.3d 837
    , 844 (7th Cir. 2002) (recognizing that counsel may not stipulate to a
    defendant’s status as a convicted felon, one of the elements of the offense, without
    that defendant’s consent). Perhaps also, as the government surmises, Carter’s
    counsel made the strategic decision to allow the nature of the convictions to be
    presented to the jury during the government’s case in chief because Carter had
    No. 03-2502                                                                    Page 4
    already decided to testify, and counsel wanted the nature of the prior judgments
    revealed before his client took the stand. See Fed. R. Evid. 609.
    In any event, we need not decide whether Carter’s trial counsel was deficient
    for not stipulating, as Carter cannot show prejudice. See United States v.
    Asubonteng, 
    895 F.2d 424
    , 428-9 (7th Cir. 1990) (“Even if the record is
    insufficiently developed, we need not remand to the district court if we determine
    that the defendant cannot establish that he or she suffered some prejudice.”). The
    evidence against Carter was substantial; he was found alone with the drugs and
    guns, Carter confessed that they belonged to him, and a police officer testified that
    he described the weapons before being advised by police as to what types of
    firearms they recovered from the apartment.
    B.    Consideration of Defendant’s Juvenile Armed Robbery Adjudications Under
    the Armed Career Criminal Act, 
    18 U.S.C. § 924
    (e)
    The district court increased Carter’s sentence pursuant to the Armed Career
    Criminal statute, 
    18 U.S.C. § 924
    (e)(1), based on his two prior qualifying adult
    offenses and his three juvenile armed robbery adjudications. Carter contends that
    his trial counsel performed deficiently at sentencing by failing to challenge the use
    of Carter's juvenile adjudications in the consideration of whether Carter qualified
    for the enhancement.
    A defendant qualifies for the Armed Career Criminal enhancement if he has
    three prior convictions “for a violent felony or a serious drug offense, or both,
    committed on occasions different from one another.” 
    18 U.S.C. § 924
    (e)(1). A
    “conviction includes a finding that a person has committed an act of juvenile
    delinquency involving a violent felony.” 
    18 U.S.C. § 924
    (e)(2)(c). The statute
    defines the term “violent felony” as:
    any crime punishable by imprisonment for a term exceeding one year,
    or any act of juvenile delinquency involving the use or carrying of a
    firearm, knife or other destructive device that would be punishable by
    imprisonment for such term if committed by an adult.
    § 924(e)(2)(B) (emphasis added). All of Carter’s armed robbery juvenile
    adjudications involved the use of firearms and, therefore, qualify as violent felonies
    properly considered for purposes of the Armed Career Criminal enhancement.
    Carter contends that we should ignore the statute’s explicit references to
    juvenile adjudications and, instead, look to the definition of the phrase “crime
    punishable by imprisonment for a term exceeding one year,” which was used in the
    aforementioned definition of “violent felony.” Section 
    18 U.S.C. § 921
    (a)(20)
    provides:
    what constitutes a conviction of [a crime punishable by imprisonment
    for a term exceeding one year] shall be determined in accordance with
    No. 03-2502                                                                   Page 5
    the law of the jurisdiction in which the proceedings were held. Any
    conviction which has been expunged, or set aside or for which a person
    has been pardoned or has had civil rights restored shall not be
    considered a conviction for the purposes of this chapter unless such
    pardon, expungement, or restoration of civil rights expressly provides
    that the person may not ship, transport, possess or receive firearms.
    In Wisconsin, the state where Carter’s juvenile proceedings were held, juvenile
    judgments were not considered convictions for crimes at the time of Carter’s
    adjudications. 
    Wis. Stat. § 48.35
     (1993-94). Thus, Carter argues his juvenile
    adjudications should not have been taken into consideration during sentencing.
    Carter’s argument fails, however, since his reading ignores the plain language of §
    924(e), which expressly includes within its scope armed juvenile adjudications.
    Consequently, trial counsel was not deficient for declining to pursue this line of
    argument.
    C.    Failure to Challenge Search Warrant
    Although Carter’s trial counsel made a general motion to suppress the
    evidence seized in the case, he did not challenge the search warrant. Carter argues
    that his trial counsel rendered ineffective assistance by merely filing a conclusory
    and ineffective motion requesting suppression generally.
    The district court rejected Carter’s ineffective assistance claim relying on
    United States v. Evans, 
    131 F.3d 1192
    , 1193 (7th Cir. 1997), which found: “an
    attorney’s failure to achieve suppression of probative evidence cannot be ineffective
    assistance, because the defendant cannot show ‘prejudice’ from the use of evidence
    that increases the probability of an accurate verdict.” (citing Holman v. Page, 
    95 F.3d 481
     (7th Cir. 1996)). Since the district court’s ruling, this court has overruled
    that aspect of Holman. See Owens v. United States, 
    387 F.3d 607
     (7th Cir. 2004).
    In Owens, we held that “the test of prejudice to be used in applying the standard of
    the Strickland case for ineffective assistance of counsel is not whether it would
    somehow offend fairness (a standard independently objectionable because of its
    vagueness) to allow the judgment to stand despite the defense lawyer’s incompetent
    performance but whether that performance deprived his client of a ‘substantive or
    procedural right to which the law entitled him.’” 
    387 F.3d at 611
     (quoting Williams
    v. Taylor, 
    529 U.S. 362
    , 392-5, 
    120 S.Ct. 1495
     (2000)). In light of Owens, our task
    in assessing Carter’s claim of prejudice is now whether counsel’s conclusory motion
    deprived Carter of a procedural right entitled to him by the law.
    It is clear, upon review of this record, that counsel’s conclusory motion did
    not deprive Carter of any right because even a more elaborate attempt by Carter’s
    lawyer to suppress the evidence would have been futile as the search warrant was
    supported by probably cause. The affidavit supporting the search warrant (1)
    No. 03-2502                                                                     Page 6
    specifically described the area to be searched, (2) indicated that 72 hours prior, an
    informant who had provided reliable information that had resulted in convictions in
    the past had made a controlled purchase at the residence, (3) alleged that the same
    informant saw a handgun while in the residence, (4) noted that an anonymous
    citizen claimed there were three handguns in the residence, and (5) stated that
    Leonard Carter was recently paroled for drugs and was in the residence, and that
    his girlfriend, Evelyn Carter, who lived in the home, was involved in drug activity.
    See United States v. Lamon, 
    930 F.2d 1183
    , 1188 (7th Cir. 1991) (finding warrant
    based largely on informant’s recent drug buy was supported by probable cause).
    In any event, even if the warrant was not supported by probable cause, the
    officers here were entitled to rely on the good faith exception to the exclusionary
    rule as set forth in United States v. Leon, 
    468 U.S. 897
    , 926 (1984). To qualify for
    the good faith exception, the officers conducting the search must be able to manifest
    objective good faith belief in the validity of the warrant. Leon, 
    468 U.S. at 926
    .
    Absent the allegation that the issuing judge “abandoned his detached and neutral
    role, suppression is appropriate only if the officers were dishonest or reckless in
    preparing their affidavit or could not have harbored an objectively reasonable belief
    in the existence of probable cause.” 
    Id.
     Based on the details of the warrant and
    particularly the reliability of the informant, the allegation that Carter’s girlfriend
    was also involved with drugs, the separate witness who claimed he saw firearms in
    Carter’s residence, and the absence of any facts that would indicate any impropriety
    on behalf of the officers, demonstrate that the good faith exception would apply
    here. Because no viable suppression argument existed, Carter’s trial counsel was
    not objectively deficient for failing to challenge the search warrant.
    D.    Appellate Counsel’s Advice to Dismiss Appeal and Proceed Through a § 2255
    Motion
    As a final argument, Carter contends that appellate counsel was ineffective
    for first advising Carter to withdraw his appeal (with the understanding that a §
    2255 attack would be brought later) and then subsequently withdrawing from the
    case leaving Carter without representation. The standards for establishing
    ineffective assistance of counsel when handling appeals are identical to those
    established by Strickland. Gray v. Greer, 
    800 F.2d 644
    , 646 (7th Cir. 1986).
    Because, as discussed above, none of Carter’s ineffective-assistance-of-trial-counsel
    claims had merit, appellate counsel was not deficient for deciding not to pursue
    those claims. And, to the extent that Carter is arguing that counsel was deficient
    for not pursuing his Fourth Amendment argument on direct appeal, that claim also
    fails because, as we have already discussed, any challenge to the search warrant
    would have been futile. See Gray, 
    800 F.2d at 646
     (holding that only appellate
    counsel's failure to challenge “significant and obvious” issues will result in a finding
    of deficiency).
    No. 03-2502                                            Page 7
    III. CONCLUSION
    The judgment of the district court is AFFIRMED.