Gary v. Epps

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 3, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60098
Summary Calendar
ARTHUR L. GARY,
Petitioner-Appellant,
versus
CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CV-192
--------------------
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Arthur L. Gary, Mississippi prisoner # 44082, appeals from
the district court’s denial of his 28 U.S.C. § 2254 petition
challenging his convictions for the unlawful sale and possession
with intent to distribute cocaine. The district court granted
Gary a certificate of appealability (COA) on two issues:
(1) whether counsel was ineffective in failing to preserve for
appeal the admissibility at trial of a handgun, and (2) whether
Gary’s Fourth Amendment rights were violated by the search and

-- 1 of 4 --

No. 05-60098
-2-
** Although Stone v. Powell, 428 U.S. 465, 486 (1976),
precludes Gary from obtaining federal habeas relief on an
independent Fourth Amendment claim, Stone does not bar Gary’s
ineffective assistance of counsel claim premised on counsel’s
failure to litigate a Fourth Amendment claim. See Kimmelman v.
Morrison, 477 U.S. 365, 382-83 (1986).
seizure of evidence from his home and his car and whether counsel
was ineffective for not challenging the allegedly illegal search
at trial or on appeal.**
It is undisputed that the Mississippi Supreme Court
erroneously rejected Gary’s ineffective assistance of counsel
claims on procedural grounds because the court believed that Gary
had raised the claims on direct appeal when, in fact, he had not.
We therefore review Gary’s claims de novo rather than under the
deferential standards provided in the Antiterrorism and Effective
Death Penalty Act (AEDPA). See Miller v. Johnson, 200 F.3d 274,
281 n.4 (5th Cir. 2000).
Given the overwhelming evidence that Gary sold cocaine to
Lewis Pearley, a confidential informant (CI), Gary cannot show
that but for the introduction of the handgun at trial, he would
not have been convicted. Thus, he has not shown any prejudice
from counsel’s failure to make a record of his objection to the
handgun on the basis of an alleged discovery violation. See
Strickland v. Washington, 466 U.S. 668, 694 (1984). The district
court did not err in denying relief on this claim. See id. The
same is true of Gary’s claim that counsel was ineffective for not
moving to suppress the handgun on the ground that the search of

-- 2 of 4 --

No. 05-60098
-3-
Gary’s car, where the handgun was found, violated his Fourth
Amendment rights. Gary has not shown that he was prejudiced by
counsel’s failure to litigate a Fourth Amendment claim relating
to the search of his car. See id. at 691-92.
Regarding counsel’s alleged ineffectiveness in not
challenging the search and seizure of evidence from Gary’s home,
the evidence at trial supports the district court’s denial of
this claim, albeit for reasons that differ from those provided by
the district court. Assuming arguendo that the warrantless entry
into Gary’s home violated his Fourth Amendment rights, it is
undisputed that no evidence was obtained during that entry.
Instead, officers waited for a search warrant before seizing any
evidence from Gary’s home. Gary makes no claim that the
affidavit submitted in support of the search warrant was tainted
by the warrantless entry or that anything seen during the
warrantless entry affected the officers’ decision to obtain a
warrant. See United States v. Bryan, 275 F.3d 1081 (5th Cir.
2001). The record does not support a finding that the evidence
obtained pursuant to the search warrant was excludable. Id.; see
also Murray v. United States, 487 U.S. 533, 541-42 (1988).
Because Gary has failed to show that his Fourth Amendment claim
is meritorious, he has not shown that counsel was deficient for
failing to challenge the search and seizure of evidence from his
home. See Kimmelman v. Morrison, 477 U.S. 365, 375, 382 (1986);

-- 3 of 4 --

No. 05-60098
-4-
Strickland, 466 U.S. at 694. Therefore, the district court did
not err in denying relief on this claim. Id.
Gary did not raise in state court or in the district court
the issues of whether Pearley’s identification of him was made
pursuant to an overly suggestive identification procedure or
whether the search warrant for his home and car was deficient,
and the district court did not grant a COA on either of these
issues. See Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir.
1998). These arguments are therefore beyond the scope of the
COA, which Gary has not requested be broadened to include the new
issues. See United States v. Kimler, 150 F.3d 429, 430 (5th Cir.
1998).
AFFIRMED.

-- 4 of 4 --