United States v. Elliott ( 2004 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 95-30901
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL JUSTIN ELLIOTT,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
(92-CR-20023)
_________________________
September 9, 1996
Before WISDOM, SMITH, and PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Michael Elliott appeals the denial of his motion for post-
conviction relief pursuant to 28 U.S.C. § 2255 (1994). Finding no
error, we affirm.
I.
*
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should not be published and is not precedent except under the limited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.
After stopping a pickup driven by Elliott for improper lane
usage, a deputy sheriff arrested him for driving without a valid
driver’s license and resisting arrest by providing false informa-
tion. Jeanne FreemanSSElliott’s girlfriend, the owner of the
truck, and the only passengerSSthen drove the truck to the police
station.
The police searched the truck at the station and found a
loaded revolver under a pillow on the front seat and an unloaded
shotgun and thirty pounds of marihuana in the back. At a suppres-
sion hearing, Freeman testified that Elliott stole the marihuana in
Arizona, that they were driving to Florida to sell the marihuana
when the deputy stopped them, and that the pistol was on the
truck’s front seat at that time.
Elliott pleaded guilty to possession of marihuana with intent
to distribute and using or carrying a firearm during and in
relation to a drug-trafficking offense. Elliott later filed a
§ 2255 motion, contending that he received ineffective assistance
of counsel, his conviction violated the double jeopardy clause, the
district court misapplied the sentencing guidelines, and the court
fined him without holding a proper hearing. The district court
denied the motion.
II.
Elliott contends that he received ineffective assistance of
counsel because his attorney was lackadaisical and required
2
substantial prodding before he would take any action on Elliott’s
behalf. In fact, Elliott asserts that his relatives retained
another attorney because of his appointed counsel’s inadequacies.
Specifically, Elliott argues that his counsel (1) failed to
accept collect calls or to meet with Elliott to discuss trial
strategy; (2) could have rebutted Freeman’s self-serving testimony
if he had conducted a proper investigation; and (3) encouraged him
to plead guilty even though the evidence was insufficient to
support a conviction.1
Elliott did not present his claims regarding lack of consulta-
tion and investigation to the district court. Accordingly, he may
not raise them on appeal. See, e.g., United States v. Faubion,
19 F.3d 226, 232 n.31 (5th Cir. 1994).
Even if those claims were properly before us, we would reject
them. Elliott does not assert that further consultation would have
enabled his attorney to develop additional evidence or defenses, or
that it otherwise would have affected his decision to plead guilty.
Thus, Elliott is not entitled to relief based upon inadequate
consultation. See Murray v. Maggio, 736 F.2d 279, 282-83 (5th Cir.
1984). Similarly, Elliott’s failure to identify any specific
evidence that counsel could have discovered is fatal to his
inadequate investigation claim. See Anderson v. Collins, 18 F.3d
1Elliott attached two documents to his appellate brief and requested that
we include them in the record on appeal. We have already granted the
government’s motion to strike those documents.
3
1208, 1221 (5th Cir. 1994).
Finally, Elliott argues that his attorney’s willingness to
permit him to plead guilty amounted to ineffective assistance
because the evidence against him was insufficient to support a
conviction. Elliott raised this argument in his motion in the
district court and in his reply brief on appeal, but omitted it
from his main appellate brief. Thus, he abandoned it.2
Even if we were to reach that claim, we would deny it.
Freeman’s testimony and the physical evidence seized from the truck
would have been sufficient to support convictions on the drug and
weapons charges.
III.
Elliott contends that his plea to the weapons charge lacks a
factual basis in light of a subsequent Supreme Court decision
holding that a defendant must actively employ a firearm to be
convicted of “using” it. See Bailey v. United States, 116 S. Ct.
501, 505 (1995). Elliott raises this claim for the first time on
appeal of the denial of his § 2255 motion. Assuming arguendo that
Elliott may attack his plea in this procedural posture, we find
that Bailey is of no assistance to him.
2
See Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995) (stating that
though we interpret pro se litigants’ briefs liberally, we require them to comply
with briefing requirements); Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.) (“An
appellant abandons all issues not raised and argued in its initial brief on
appeal.”), cert. denied, 115 S. Ct. 189 (1994).
4
Elliott pleaded guilty to a count charging that he “knowingly
used and carried firearms . . . during and in relation to a drug
trafficking crime.” Thus, his plea is valid if there is a factual
basis sufficient to meet either the “using” or the “carrying”
requirement of 18 U.S.C. § 924(c) (1994). United States v. Rivas,
85 F.3d 193, 195 (5th Cir. 1996).
“[B]ecause Bailey did not address the ‘carrying’ requirement,
prior precedent analyzing that prong was ‘not affected.’” Rivas,
85 F.3d at 195 (quoting United States v. Farris, 77 F.3d 391, 395
n.4 (11th Cir.), petition for cert. filed (July 29, 1996) (No. 96-
5402)). We have held repeatedly, both before and after Bailey,
that a defendant who drove a vehicle knowing that a gun was present
in it is guilty of “carrying” the gun.3 The factual stipulation
supporting Elliott’s plea and the evidence presented at the
suppression hearing indicate that Elliott drove the truck knowing
that there were two guns in it. Thus, there is a strong factual
basis for Elliott’s plea, before and after Bailey.
IV.
Finally, Elliott’s brief contains the following argument
headings: “DOUBLE JEOPARDY” and “FINE IMPOSED WITHOUT PROPER
3
See, e.g., Rivas, 85 F.3d at 195; United States v. Fike, 82 F.3d 1315,
1328 (5th Cir.), petition for cert. filed (July 29, 1996) (No. 96-5403); United
States v. Pineda-Ortuno, 952 F.2d 98, 104 (5th Cir.), cert. denied, 504 U.S. 928(1992).
5
HEARING TO DETERMINE PETITIONER’S ABILITY TO PAY.” Elliott
abandoned these claims by failing to present supporting arguments
in his appeal brief. See supra note 2.
AFFIRMED.
6