UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-50014
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD RAY GONZALES,
Defendant-Appellant,
Appeal from the United States District Court for the Western District of Texas
(SA-97-CA-240)
July 9, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
On January 27, 1993, a jury found Donald Ray Gonzales
guilty of possession with intent to distribute a controlled
substance. See 21 U.S.C. § 841(a)(1). His conviction and 80 month
sentence were affirmed by this court. See United States v.
Gonzales, No. 93-8266, slip op. (5th Cir. Nov. 1, 1993). He now
challenges his conviction under the guise of a petition for habeas
relief pursuant to 28 U.S.C. § 2255. The district court, adopting
the report and recommendation of a magistrate judge, dismissed
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Gonzales’s petition. Gonzales timely appealed and requested a
certificate of appealability (“COA”). We granted the COA to
address only one of Gonzales’s numerous arguments: whether
Gonzales’s attorney rendered ineffective assistance by failing to
seek a jury instruction regarding the lesser-included offense of
mere possession of a controlled substance under 21 U.S.C. § 844(a).
Finding Gonzales’s allegations against an attorney of the Federal
Public Defender’s Office lack merit, we affirm.
A claim of ineffective assistance of counsel is governed
by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
To prevail on an ineffective assistance claim, a petitioner must
show both deficient performance by counsel and prejudice to the
defense as a result of the deficient performance. See id. at 687,
104 S. Ct. at 2064. Counsel’s performance is deficient if it falls
below an objective standard of reasonableness. See id. at 688, 104
S. Ct. at 2064. Our review of counsel’s performance is highly
deferential, with a strong presumption that the performance was
reasonable. See id. at 689, 104 S. Ct. at 2065. Deficient
performance is prejudicial only upon a showing that but for
counsel’s errors, there is a reasonable probability that the
ultimate result would have been different and that confidence in
the reliability of the verdict is undermined. See United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994). The effectiveness of
counsel is a mixed question of law and fact reviewed de novo by
this court. See Moody v. Johnson, 139 F.3d 477, 483 (5th Cir.
2 1998).
In United States v. Hunt, 129 F.3d 739 (5th Cir. 1997),
and United States v. Lucien, 61 F.3d 366 (5th Cir. 1995), we held
that simple possession of a controlled substance, 21 U.S.C. §
844(a), constituted a lesser-included offense of possession of a
controlled substance with intent to distribute, 21 U.S.C. §
841(a)(1). See Hunt, 129 F.3d at 744 (“The government asked us to
remand for entry of judgment and for sentencing on the lesser
included offense of simple possession if we found the evidence
insufficient to support the element of intent to distribute.”
(emphasis added)); Lucien, 61 F.3d at 373-77. In fact, in the case
relied upon by the government, this court also held that simple
possession of a controlled substance under § 844(a) was a lesser-
included offense of possession with intent to distribute a
controlled substance under § 841(a)(1) -- even when the controlled
substance was cocaine base. See United States v. Deisch, 20 F.3d
139, 152 (5th Cir. 1994). Indeed, the government’s argument to the
contrary is nigh frivolous in light of our well-established
precedent.
That Gonzales may have been entitled to a jury
instruction on the lesser-included offense of simple possession
does not end our inquiry, however. We granted a COA in this case
to resolve whether Gonzales’s counsel was ineffective in failing to
request an instruction on the lesser-included offense of simple
possession. In order to prevail on this claim, Gonzales must show
3 that his attorney’s performance was both objectively unreasonable
and prejudicial. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at
2064.
Assuming, arguendo, that the performance of Gonzales’s
attorney was deficient,2 we reject Gonzales argument that he was
prejudiced by the alleged deficiency. In order to support the
prejudice prong of his ineffective assistance claim, Gonzales must
establish that, but for his counsel’s errors, the outcome of his
trial would have been different. See Faubion, 19 F.3d at 228.
Even if his counsel provided ineffective assistance by failing to
request a lesser-included offense instruction, Gonzales fails to
show that he was prejudiced by this failure.
Gonzales has not shown a reasonable probability that the
ultimate outcome of his trial was affected by his counsel’s
conduct. See id. This court has previously held that the evidence
presented at Gonzales’s trial supported his conviction for
possession with intent to distribute a controlled substance. See
2 We note that a decision not to seek an instruction on a lesser-included offense may be the result of a reasonable trial strategy. See, e.g., Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir. 1997) (lesser-included offense inconsistent with alibi); Cordova v. Scully, No. 87 Civ. 0839, 1991 WL 733, at *3 (S.D.N.Y. Jan. 4, 1991) (“[C]ounsel, perhaps assured of an acquittal on the [greater offense], reasonably would not want to chance conviction on a lesser charge.”). In his closing argument Gonzales’s attorney argued that the cocaine base did not belong to Gonzales. Under the circumstances, to argue in the alternative that Gonzales possessed the drugs without the intent to distribute would have been inconsistent with Gonzales’s defense. However, because the district court did not examine the reasonableness of the decision in this case, we assume that counsel’s performance fell below the Strickland reasonableness standard.
4 Gonzales, No. 93-8266, slip op. at 2-3. Gonzales contends,
however, that his counsel’s deficient performance erodes confidence
in the jury verdict because jurors faced with the opportunity might
have acquitted him of possession with intent to distribute and
convicted him of simple possession.3 The mere fact that jurors
might have convicted Gonzales of simple possession does not alter
the fact that they did convict him of possession with intent to
distribute. Moreover, this conviction is supported by the trial
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-50014
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD RAY GONZALES,
Defendant-Appellant,
Appeal from the United States District Court for the Western District of Texas
(SA-97-CA-240)
July 9, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
On January 27, 1993, a jury found Donald Ray Gonzales
guilty of possession with intent to distribute a controlled
substance. See 21 U.S.C. § 841(a)(1). His conviction and 80 month
sentence were affirmed by this court. See United States v.
Gonzales, No. 93-8266, slip op. (5th Cir. Nov. 1, 1993). He now
challenges his conviction under the guise of a petition for habeas
relief pursuant to 28 U.S.C. § 2255. The district court, adopting
the report and recommendation of a magistrate judge, dismissed
* 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. Gonzales’s petition. Gonzales timely appealed and requested a
certificate of appealability (“COA”). We granted the COA to
address only one of Gonzales’s numerous arguments: whether
Gonzales’s attorney rendered ineffective assistance by failing to
seek a jury instruction regarding the lesser-included offense of
mere possession of a controlled substance under 21 U.S.C. § 844(a).
Finding Gonzales’s allegations against an attorney of the Federal
Public Defender’s Office lack merit, we affirm.
A claim of ineffective assistance of counsel is governed
by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
To prevail on an ineffective assistance claim, a petitioner must
show both deficient performance by counsel and prejudice to the
defense as a result of the deficient performance. See id. at 687,
104 S. Ct. at 2064. Counsel’s performance is deficient if it falls
below an objective standard of reasonableness. See id. at 688, 104
S. Ct. at 2064. Our review of counsel’s performance is highly
deferential, with a strong presumption that the performance was
reasonable. See id. at 689, 104 S. Ct. at 2065. Deficient
performance is prejudicial only upon a showing that but for
counsel’s errors, there is a reasonable probability that the
ultimate result would have been different and that confidence in
the reliability of the verdict is undermined. See United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994). The effectiveness of
counsel is a mixed question of law and fact reviewed de novo by
this court. See Moody v. Johnson, 139 F.3d 477, 483 (5th Cir.
2 1998).
In United States v. Hunt, 129 F.3d 739 (5th Cir. 1997),
and United States v. Lucien, 61 F.3d 366 (5th Cir. 1995), we held
that simple possession of a controlled substance, 21 U.S.C. §
844(a), constituted a lesser-included offense of possession of a
controlled substance with intent to distribute, 21 U.S.C. §
841(a)(1). See Hunt, 129 F.3d at 744 (“The government asked us to
remand for entry of judgment and for sentencing on the lesser
included offense of simple possession if we found the evidence
insufficient to support the element of intent to distribute.”
(emphasis added)); Lucien, 61 F.3d at 373-77. In fact, in the case
relied upon by the government, this court also held that simple
possession of a controlled substance under § 844(a) was a lesser-
included offense of possession with intent to distribute a
controlled substance under § 841(a)(1) -- even when the controlled
substance was cocaine base. See United States v. Deisch, 20 F.3d
139, 152 (5th Cir. 1994). Indeed, the government’s argument to the
contrary is nigh frivolous in light of our well-established
precedent.
That Gonzales may have been entitled to a jury
instruction on the lesser-included offense of simple possession
does not end our inquiry, however. We granted a COA in this case
to resolve whether Gonzales’s counsel was ineffective in failing to
request an instruction on the lesser-included offense of simple
possession. In order to prevail on this claim, Gonzales must show
3 that his attorney’s performance was both objectively unreasonable
and prejudicial. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at
2064.
Assuming, arguendo, that the performance of Gonzales’s
attorney was deficient,2 we reject Gonzales argument that he was
prejudiced by the alleged deficiency. In order to support the
prejudice prong of his ineffective assistance claim, Gonzales must
establish that, but for his counsel’s errors, the outcome of his
trial would have been different. See Faubion, 19 F.3d at 228.
Even if his counsel provided ineffective assistance by failing to
request a lesser-included offense instruction, Gonzales fails to
show that he was prejudiced by this failure.
Gonzales has not shown a reasonable probability that the
ultimate outcome of his trial was affected by his counsel’s
conduct. See id. This court has previously held that the evidence
presented at Gonzales’s trial supported his conviction for
possession with intent to distribute a controlled substance. See
2 We note that a decision not to seek an instruction on a lesser-included offense may be the result of a reasonable trial strategy. See, e.g., Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir. 1997) (lesser-included offense inconsistent with alibi); Cordova v. Scully, No. 87 Civ. 0839, 1991 WL 733, at *3 (S.D.N.Y. Jan. 4, 1991) (“[C]ounsel, perhaps assured of an acquittal on the [greater offense], reasonably would not want to chance conviction on a lesser charge.”). In his closing argument Gonzales’s attorney argued that the cocaine base did not belong to Gonzales. Under the circumstances, to argue in the alternative that Gonzales possessed the drugs without the intent to distribute would have been inconsistent with Gonzales’s defense. However, because the district court did not examine the reasonableness of the decision in this case, we assume that counsel’s performance fell below the Strickland reasonableness standard.
4 Gonzales, No. 93-8266, slip op. at 2-3. Gonzales contends,
however, that his counsel’s deficient performance erodes confidence
in the jury verdict because jurors faced with the opportunity might
have acquitted him of possession with intent to distribute and
convicted him of simple possession.3 The mere fact that jurors
might have convicted Gonzales of simple possession does not alter
the fact that they did convict him of possession with intent to
distribute. Moreover, this conviction is supported by the trial
evidence. See Gonzales, No. 93-8266, slip op. at 2-3 (“[T]he
evidence of Gonzales’s guilt was overwhelming.”). Absent
prejudice, Gonzales cannot support an ineffective assistance claim
and, thus, fails to state a cognizable basis for habeas relief.
AFFIRMED.
3 That a jury may have acquitted of the greater charge and convicted of the lesser charge is a prerequisite to a finding that the latter is a lesser-included offense. See Lucien, 61 F.3d at 374-77.