Everett v. USA

United States Court of Appeals
Fifth Circuit
F I L E D
August 9, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-41145
_______________
BRUCE GALEN EVERETT
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 4:01-CV-324
_____________________________________
Before SMITH, GARZA, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Bruce Everett appeals the denial of his 28
U.S.C. § 2255 motion to vacate, on the
ground of ineffective assistance of counsel, his
conviction of and sentence for being a felon in
possession of ammunition in violation of 18
U.S.C. § 922(g)(1). We affirm.
I.
A.
On October 23, 1998, police in Plano, Tex-
as, received a call from JoAnna Everett re-
garding a domestic disturbance at her house.
When the police, including Officer Jeff Rich,
arrived, they found Mrs. Everett in her front
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published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.

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yard, frantic and obviously upset. She told the
officers that her husband, Bruce, was acting in
a violent and paranoid manner and that she
feared he was “reverting to his old ways,”
which, according to Mrs. Everett, included be-
havior resulting in a conviction for bank rob-
bery.
With regard to the specific conduct that
precipitated her call to the police, Mrs. Everett
informed the officers that her husband had im-
prisoned her in the house by screwing the door
shut, had thrown a vacuum cleaner through
their television, and had pushed a five-gallon
water bottle into her. An examination of the
physical state of the home confirmed these
claims. The police arrested Everett for family
violence.
Mrs. Everett also told the officers that her
husband kept a pistol and ammunition in the
house. After Everett had been taken to the
police station, Rich, in Mrs. Everett’s presence
and with her consent, searched a closet and
chest of drawers in the master bedroom, look-
ing for the pistol. Mrs. Everett identified the
chest as belonging to her husband, and it was
full of male clothing. In the top drawer Rich
discovered loose rounds of ammunition.
Rich was contacted by Joe Patterson, a
special agent with the Bureau of Alcohol,
Tobacco, and Firearms. Based on what Rich
told him about the search, Patterson sought
and obtained a warrant to conduct a further
search of the residence for firearms and am-
munition. In executing the warrant, agents
discovered the same loose ammunition that
Rich had seen and three boxes of 9mm ammu-
nition hidden in the bottom drawer of the same
chest. No firearms were found.
Patterson arrested Everett on charges of
being a felon in possession of ammunition in
violation of federal law. While he was in the
process of making the arrest, Everett said to
Patterson, “[h]ypothetically, I didn’t realize
that a convicted felon couldn’t possess ammu-
nition.”
B.
Everett was indicted on two counts of be-
ing a felon in possession of ammunition in
violation of 18 U.S.C. § 922(g)(1)SSone count
for the loose ammunition, and one count for
the three boxes of 9mm ammunition. To
prove a violation of § 922(g)(1) the govern-
ment must show that the defendant (1) is a
convicted felon (2) who knowingly possessed
ammunition and (3) that the ammunition trav-
eled in or affected interstate commerce. See
United States v. Hinojosa, 349 F.3d 200, 203
(5th Cir. 2003)
At trial, a stipulation, signed by Everett,
was entered and read to the jury, stating that
[d]efendant Bruce Galen Everett was con-
victed in the Western District of Oklahoma
on May 7, 1982, in cause No. CR-82-66T,
for aggravated bank robbery, in violation of
Title 18, United States Code, Sections
2113(a) and (d), and sentenced to twenty-
five (25) years confinement.
Expert witnesses established that the ammuni-
tion found in Everett’s chest of drawers had
traveled in or affected interstate commerce.
On the only truly contested element, which
was Everett’s knowing possession of the am-
munition, Rich and others testified as to the
results of the two searches, the comments
made by Mrs. Everett regarding her husband’s
past and his ownership of the ammunition, and
the statement by Everett at the time of his
arrest. Mrs. Everett testified for the defense.
She recanted her prior statements regarding

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the ownership of the ammunition and stated
that the loose ammunition belonged to her and
that the three boxes of ammunition belonged
to Chris Odom, one of Everett’s employees.1
Mrs. Everett explained her prior inconsistent
statements to the police by testifying that, at
the time, she wanted her husband to be
“locked up” because she was concerned about
his mental health.
The jury convicted Everett on both counts,
and Everett appealed. This court affirmed the
conviction and sentence, upholding the admis-
sibility of the statement Everett had made to
Patterson at the time of his arrest and ruling
that the evidence was sufficient. See United
States v. Everett, 237 F.3d 631 (5th Cir. 2000)
(table).
C.
Everett filed a § 2255 motion to vacate, on
the basis of several alleged constitutional er-
rors, his conviction and sentence. He claimed,
inter alia, ineffective assistance of counsel on
the grounds that (1) his attorney allowed in-
formation regarding the nature of his past fel-
ony conviction to come in at trial, both via the
stipulation and through witness testimony, and
(2) his attorney encouraged him to waive his
right to be physically present at his sentencing
hearing, resulting in Everett’s participating in
the proceeding by video conference only.
The district court denied the § 2255 motion
as to all claims. Proceeding pro se, Everett
then applied to this court for a certificate of
appealability, which we granted only with
respect to his claim of ineffective assistance of
counsel. Everett now appeals on the basis of
that issue.
II.
“We review a district court’s conclusions
with regard to a petitioner’s § 2255 claim of
ineffective assistance of counsel de novo. We
review § 2255 findings of fact for clear error.”
United States v. Molina-Uribe, 429 F.3d 514,
518 (5th Cir. 2005) (internal quotation and
footnote omitted).
Under Strickland v. Washington, 466 U.S.
668, 688 (1984), to establish a denial of his
Sixth Amendment right to effective assistance
of counsel, Everett “must show that counsel’s
representation fell below an objective standard
of reasonableness.” In addition, he must dem-
onstrate that “the deficient performance preju-
diced [his] defense.” Id. at 687. Everett
“bears the burden of proving both Washington
prongs, and if one of the elements is determi-
native, we need not consider the other.” Go-
chicoa v. Johnson, 238 F.3d 278, 285 (5th Cir.
2000).
In our examination of counsel’s perfor-
mance, we must make an effort “to eliminate
the distorting effects of hindsight, to recon-
struct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.”
Washington, 466 U.S. at 689. Our review is
highly deferential to the choices made by coun-
sel. We employ a “strong presumption that
counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id.
“To prevail on an ineffective assistance claim
the defendant must argue more than mere
sub-optimal trial tactics. Our role under §
2255 is not to audit decisions that are within
the bounds of professional prudence.” Mo-
lina-Uribe, 429 F.3d at 518.
1 For testifying that he bought the 9mm ammu-
nition for himself when he was buying cleaning
supplies for Mrs. Everett, Odom was subsequently
indicted and convicted on one count of aggravated
perjury under 18 U.S.C. § 1623.

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To establish prejudice, Everett “must show
that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result
of the proceeding would have been different.
A reasonable probability is a probability suf-
ficient to undermine confidence in the out-
come.” Washington, 466 U.S. at 694. “It is
not enough for [a defendant] to show that the
errors had some conceivable effect on the out-
come of the proceeding.” Id. at 693.
III.
Everett reasserts on appeal his argument
that his attorneyrendered ineffective assistance
by allowing the circumstances surrounding his
prior felony conviction to come in at trial and
by encouraging him to waive his right to be
physically present at sentencing. In assigning
fault regarding the introduction of the circum-
stances of his prior conviction, Everett alleges
specifically that his counsel erred by (1) en-
couraging him to sign the detailed stipulation,
which notified the jury that Everett’s convic-
tion was for aggravated bank robbery and that
his sentence was twenty-five years imprison-
ment; (2) eliciting from Mrs. Everett on direct
examination her testimony that she told the
police about Everett’s bank robbery conviction
because she knew it was illegal for him to
possess ammunition and wanted him to be
“locked up;” and (3) failing to object to ref-
erences to the details of the prior conviction in
the government’s opening and closing argu-
ments.
In Old Chief v. United States, 519 U.S. 172
(1997), the Court held that the details of a pri-
or conviction can, in certain circumstances, be
so unfairly prejudicial as to render them in-
admissible under Federal Rule of Evidence
403. The Court explained:
In dealing with the specific problem raised
by § 922(g)(1) and its prior-conviction ele-
ment, there can be no question that evi-
dence of the name or nature of the prior of-
fense generally carries a risk of unfair pre-
judice to the defendant. That risk will vary
from case to case . . . but will be substantial
whenever the official record offered by the
Government would be arresting enough to
lure a juror into a sequence of bad charac-
ter reasoning. Where a prior conviction
was for a gun crime or one similar to other
charges in a pending case the risk of unfair
prejudice would be especially obvious . . . .
Id. at 185.
Everett contends, essentially, that by failing
at least to try to prevent the jury from hearing
that his prior conviction was for aggravated
bank robbery, his counsel left him exposed to
just such “bad character reasoning.” Even as-
suming, without deciding, that his attorney’s
performance in this regard falls below an ob-
jective standard ofreasonableness, Everett was
not prejudiced by the error, because he has
failed to show that but for the revelation of the
nature of his prior conviction, the jury would
have acquitted him.
The mere fact that Everett previously had
been convicted of a felony was uncontested,
and the movement of the relevant ammunition
in interstate commerce was easily established.
Furthermore, the jury had plenty of evidence
pointing to Everett’s ownership of the ammu-
nition. Most notably, the officers found the
ammunition in the Everetts’ master bedroom,
hidden in a chest of drawers containing men’s
clothing. Furthermore, despite prefacing the
comment with “hypothetically,” Everett’s
statement to Patterson at the time of his arrest
indicated that the ammunition was his.
Finally, the jury was free to conclude that
Mrs. Everett’s statements to the police regard-

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ing Everett’s ownership of the ammunition,
rather than her revised testimony at trial, more
accurately reflected the truth of the matter.
Given the strength of the government’s case,
we cannot say that it was the jury’s possible
“bad character” assessment, rather than its
frank consideration of the evidence, that led to
the conviction.
Likewise, there was no prejudice from
Everett’s physical absence from his sentencing
hearing, even assuming, without deciding, that
it was objectively unreasonable for his attorney
to encourage him to waive his right to be
present in the courtroom during the proceed-
ing. In explaining that right to Everett in ad-
vance of the hearing, the district court stated
explicitly that Everett would receive the same
sentence irrespective of whether he chose to
be physically present at the hearing. Everett
has failed to demonstrate how his absence,
contrary to the court’s assurances, had any
material effect on the sentence.
Because Everett was not prejudiced by any
errors trial counsel may have made, we AF-
FIRM the denial of his § 2255 motion.

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