Carter, Leonard v. United States

UNPUBLISHED ORDER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
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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)
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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.