United States v. Elliott

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 25, 2004
• Docket: 95-30901
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

1 Elliott 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.