United States v. Mace McGrew

560 F. App'x 342
Court of Appeals for the Fifth Circuit·Decided March 31, 2014·No. 12-50469·Unpublished

Opinions

PER CURIAM: *

Mace McGrew appeals the district court’s denial of his 28 U.S.C. § 2255 motion, in which he attacked his conviction and sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We AFFIRM.

FACTS AND PROCEEDINGS

McGrew was present at his girlfriend Renee Chapman’s house when two probation officers and two sheriffs deputies arrived to conduct a probation compliance check on Chapman. On their arrival, Chapman consented to a search of the house, at which McGrew spent several nights each week. During their search of the bedroom Chapman shared with McGrew, the probation officers found an AK-47-style rifle in a blue sheath concealed under their bed, as well as a loaded ammunition magazine, a locked lockbox, and a bulletproof vest. Elsewhere in the bedroom, the officers found a box of .40 caliber handgun ammunition, an empty shoulder holster, a night vision device, and a shoebox containing marijuana. Chapman denied that the rifle was hers and told the officers that another man, later identified as William Tutt, had brought some “stuff’ over to the house.

[344] McGrew was sitting on a couch in the living room while the officers conducted this search. As the officers brought the discovered items into the living room, McGrew admitted that the marijuana was his but denied ownership of the rifle. Considering the possibility that there was a handgun elsewhere in the house because of the discovery of the empty holster and box of handgun ammunition, the officers continued to search the house and attempted to open the lockbox discovered in the bedroom. Chapman and McGrew both told the officers that the lockbox was not theirs, that they did not have a key, and that it belonged to Tutt. McGrew then called Tutt and asked him to bring the key, Tutt arrived with the key, the officers opened the lockbox, and in it they discovered money and another ammunition magazine. The officers allowed Tutt to leave the house with the money but arrested McGrew for possession of the marijuana and the rifle.

McGrew and Tutt were both indicted for possessing the rifle as felons, in violation of 18 U.S.C. § 922(g)(1), and tried. Because McGrew was being prosecuted under a constructive possession theory, the key issue at trial was whether McGrew had known about the rifle being under the bed. McGrew’s primary defense was that, while he had allowed Tutt to store a number of items in the bedroom, he had not known what they were and had not known about the rifle. To this end, Chapman testified that, on the night that Tutt had brought the items, including the rifle, to the house, McGrew had drunk approximately five beers while on prescription pain medication, and that by the time Tutt came over McGrew was semiconscious or unconscious.

The Government presented testimony from all four officers. One of the officers, Sheriffs Deputy Robert Gallegos, testified that McGrew, on being questioned after the search, initially denied that the rifle was his but eventually admitted that he had known that the rifle was under the bed. Tutt took the stand in his own defense and inculpated McGrew, testifying that, trying to dispose of the rifle, he had contacted McGrew who had agreed to accept possession of it.

At the conclusion of trial, the jury found McGrew guilty and Tutt not guilty, and the district court sentenced McGrew to 51 months’ imprisonment. McGrew appealed, asserting claims of evidentiary insufficiency, of a due process violation resulting from a discovery error on the part of the Government, and of a Sixth Amendment Confrontation Clause violation. We affirmed the judgment of the district court. United States v. McGrew, 165 Fed.Appx. 308 (5th Cir.2006).

Over a year later, McGrew filed a 28 U.S.C. § 2255 motion for post-conviction relief, alleging ineffective assistance of appellate counsel and a Fifth Amendment claim. The Fifth Amendment claim was based on the officers’ having questioned McGrew about the rifle without first informing him of his Miranda rights. The district court denied this motion without holding an evidentiary hearing, but we granted a certificate of appealability and reversed the district court in part, remanding for an evidentiary hearing into the Fifth Amendment claim. United States v. McGrew, 897 Fed.Appx. 87, 95 (5th Cir.2010).

At the evidentiary hearing, Deputy Gallegos admitted that McGrew was not free to leave after he admitted to possession of the marijuana. Gallegos also admitted that he questioned McGrew about the rifle hoping that McGrew would incriminate himself. Gallegos further conceded that he had not given McGrew Miranda warnings prior to questioning him. [345] McGrew argued, and the district court held, that the admission of Gallegos’s testimony regarding McGrew’s statements that he knew about the rifle violated McGrew’s Fifth Amendment rights. However, because McGrew did not raise this issue prior to his § 2255 motion, the district court held it to be procedurally defaulted.

McGrew contended that he could establish cause to overcome the procedural default because his trial counsel, Edward Bravenec, had provided ineffective assistance by not bringing a motion to suppress Gallegos’s testimony about McGrew’s statements. McGrew asserted that Brave-nec had access to Gallegos’s police report prior to trial and that it indicated that Gallegos would testify that McGrew had said that he knew about the rifle. At the evidentiary hearing, Bravenec testified that he had believed, having read a number of the police reports including Gallegos’s and having spoken to McGrew, that Gallegos’s testimony would be that McGrew had known there were items under the bed but had not known that they included a rifle. Bravenec thought this testimony would be favorable to the defense and therefore did not move to suppress.

In light of Bravenec’s explanation, the district court held that Bravenec’s failure to suppress Gallegos’s testimony about McGrew’s statements was “sound trial strategy” and did not amount to ineffective assistance. Therefore, McGrew had failed to demonstrate cause to excuse the procedural default of his Fifth Amendment claim. The district court granted McGrew a certificate of appealability on this issue, though, and McGrew now appeals.

STANDARD OF REVIEW

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