United States v. Brown

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30479

(Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WELTON BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

(CA-94-3753 & CR-89-377-F)

October 27, 1995

Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Welton Brown appeals rulings of the

district court that culminated in the denial of his motions to

correct his sentence, to credit him for time served, to provide for

*

Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

concurrent running of his state and federal sentences, and to grant

his habeas petition under 28 U.S.C. § 2255. Finding no reversible

error, we affirm.

I

FACTS AND PROCEEDINGS

A jury convicted Welton Brown of bank robbery, in violation of

18 U.S.C. § 2113(a).1 The district court imposed the statutory

maximum sentence of 240 months imprisonment to run consecutively to

any state court sentence. Brown appealed, challenging the district

court's decisions that his lineup identification was admissible and

that his sentence would run consecutive to any state sentence

resulting from the robbery. We affirmed the judgment of the

district court on direct appeal.2

Brown filed a motion to correct his sentence pursuant to

Fed. R. Crim. P. 35, seeking credit for time served, but that

motion was denied. His petition under 28 U.S.C. § 2241, seeking an

order that his state and federal sentences run concurrently, was

also denied. He then filed a § 2255 motion to vacate, set aside,

or correct sentence raising six grounds of relief.

In its response, the government asserted that Brown was

procedurally barred from raising his claims in a § 2255 motion and

that his motion was successive under Rule 9(b) of the Rules

Governing Section 2255 Proceedings. The magistrate judge

1

The underlying facts of this case are set forth in detail

in United States v. Brown, 920 F.2d 1212 (5th Cir.), cert. denied,

500 U.S. 925 (1991).

2

Id.

2

determined from the record that Brown had not filed previous § 2255

motions and that the motion was not successive; but concluded

nevertheless that all of Brown's claims except those of ineffective

assistance of counsel were procedurally barred. As for the

ineffective assistance claim, the magistrate judge determined that

Brown had not shown that counsel's performance was deficient or

that Brown had been prejudiced, and recommended that the district

court deny the § 2255 motion.

The district court considered Brown's objections to the

magistrate judge's report and conducted de novo review. Thereafter

the court adopted the magistrate judge's report and recommendation,

and denied relief. Brown timely filed a notice of appeal.

II

ANALYSIS

Brown raises the following issues in this appeal: (1) he was

deprived of his Fifth Amendment right to remain silent by an F.B.I.

agent who elicited his confession; (2) police officers used

suggestive identification procedures in presenting to

identification witnesses the photos taken by a bank surveillance

camera; (3) the district court deprived him of a fair trial by not

permitting some members of the jury to see Brown after

deliberations had begun, even though four of the jurors were unable

to see him during the trial because their view was blocked by a

podium; (4) the district court accepted counsel's unauthorized

waiver of Brown's right to be present during the reading of an

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Allen3 charge; (5) the district court gave an Allen charge to the

jury without permitting the jury to view Brown; and (6) counsel was

ineffective at trial in several respects.

"For a collateral attack under § 2255, `a distinction is drawn

between constitutional or jurisdictional errors on the one hand,

and mere errors of law on the other.'" United States v. Pierce,

959 F.2d 1297, 1300-01 (5th Cir.) (quoting United States v. Capua,

656 F.2d 1033, 1037 (5th Cir. Unit A 1981)), cert. denied, 113 S.

Ct. 621 (1992). Even an alleged constitutional error may not be

raised "for the first time on collateral review without showing

both `cause' for [the] procedural default, and `actual prejudice'

resulting from the error." United States v. Shaid, 937 F.2d 228,

232 (5th Cir. 1991) (en banc), cert. denied, 502 U.S. 1076 (1992)

(citation omitted).

A. Ineffective Assistance of Counsel

Brown's claims that counsel was ineffective are of

constitutional magnitude and, as a general rule, cannot be resolved

on direct appeal. Pierce, 959 F.2d at 1301 (citing inter alia

United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987)),

cert. denied, 484 U.S. 1075 (1988). To support a claim of

ineffective assistance of counsel, Brown must meet both the cause

and prejudice prongs of the test established in Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). To show prejudice, the

3

"`Allen' refers to Allen v. United States, 164 U.S. 492

(1896). The term describes supplemental instructions urging jurors

to forego their differences and reach a unanimous verdict." United

States v. Heath, 970 F.2d 1397, 1406 n.2 (5th Cir. 1992), cert.

denied, 113 S. Ct. 1643 (1993).

4

defendant must demonstrate that counsel's errors were so serious as

to deprive the defendant of a trial the result of which is fair or

reliable. Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993). "An

insufficient showing of prejudice pretermits addressing the [cause]

prong." Pierce, 959 F.2d at 1302.

Brown contends that counsel was ineffective in waiving Brown's

right to be present during trial proceedings. Brown was absent

from the courtroom on two occasions: (1) when the district court

recessed at the end of the day and admonished the jury concerning

their responsibility until they returned the next morning, and

(2) during a modified Allen charge the following day after the jury

had advised the district court that it could not make a unanimous

decision.

Defense counsel's decision not to allow Brown to appear before

the jury when the recess was announced or when the Allen charge was

given is consistent with her attempt to prevent the jury from

viewing Brown again. During deliberations, the jury asked to see

the defendant because some of the jurors' view had been blocked.

Defense counsel asked the district court to allow her time to think

about it and to confer with her associates. She then opposed

permitting the jury to see Brown because it was tantamount to

improperly reopening the evidence. Defense counsel argued that

part of the defense was "identification and the recollection of

what one looks like, and that to essentially bring him in and

present him to the jury is an additional fact." As a result, the

district court did not allow the jury to view the defendant because

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the evidence was closed.

Brown has failed to demonstrate that counsel's aggressive

opposition to permitting the jury to view him was not sound trial

strategy. It was reasonable for counsel to conclude from the

jury's questions to the district court that it was having

difficulty with the identification evidence. "[S]trategic choices

made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments

support the limitations on investigation." Black v. Collins, 962

F.2d 394, 401 (5th Cir.) (internal quotation and citation omitted),

cert. denied, 504 U.S. 992 (1992). Even if counsel did not confer

with Brown concerning her decision that he not appear, Brown has

not demonstrated that counsel's errors were so serious as to

deprive him of a trial with a fair or reliable result.

Brown also asserts that counsel's conduct was unprofessional

and that she failed to preserve his rights for appeal. He fails to

argue these issues in the body of his brief, however, so they are

deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993). Brown is also deemed to have abandoned any issues

concerning counsel's effectiveness raised in the district court but

not raised on appeal. See Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). We "will not

raise and discuss legal issues that [Brown] has failed to assert."

Id.

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B. Remaining claims

Brown's remaining contentions "fail to clear the procedural

hurdle for a collateral challenge." Pierce, 959 F.2d at 1304.

Although the issues are of constitutional magnitude, Brown has

neither demonstrated cause for failing to raise these issues on

direct appeal nor the prejudice he would suffer if we should refuse

to address these claims. Brown asserted in his objections to the

magistrate judge's report that counsel's ineffectiveness caused the

procedural default and that Brown suffered actual prejudice. Again

in his reply brief, Brown asserted that he had demonstrated cause

and prejudice. And he reiterated his contentions that the

identification was suggestive and that he was deprived of his Fifth

and Sixth Amendment rights. Brown failed, however, to argue his

Sixth Amendment claims adequately, other than that his counsel was

ineffective in waiving Brown's right to be present during two

particular incidents. Brown has not shown that he has been

deprived of his Sixth Amendment right; thus, he has not

demonstrated either cause or prejudice. See Murray v. Carrier, 477

U.S. 478, 488 (1986). For these reasons, the judgment of the

district court denying § 2255 relief is

AFFIRMED.

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