UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JULIUS LEE TURRENTINE, Defendant - Appellant. No. 15-6082 (W.D. Okla.) (D.C. Nos. 5:14-CV-00737-HE & 5:12-CR-00001-HE-1)

ORDER AND JUDGMENT *

Before TYMKOVICH , Chief Judge, BALDOCK and HARTZ , Circuit Judges.

Defendant Julius Lee Turren tine, a federal prisoner, wa s convicted in March 2012 of conspiracy to possess with intent to dist ribute five or more kilograms of cocaine. See 21 U.S.C. §§ 846 and 841(b)(1)(A). He was sentenced to 240 months’ imprisonment.

* After examining the briefs and appellate reco rd, this panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34. 1(G). The case is therefore ordered submitted without oral argument. The case is theref ore ordered submitted without oral argument. This order and judgment is not binding precedent, except un der the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 6, 2016
Elisabeth A. Shumaker Clerk of Court2 After we affirmed his conviction, see United States v. Turrentine , 542 F. App'x 714 (10th Cir. 2013) cert. denied , 134 S. Ct. 1356 (2014), he filed an unsuccessful motion in the United States District Court for the Wester n District of Oklahoma under 28 U.S.C. § 2255. We granted a certif icate of appealability (COA), see 28 U.S.C. § 2253(c)(1)(B), to permit him to appeal on one question: “Whe ther appellate counsel was ineffective in failing to appeal from the denial of tria l counsel’s objection to the admission into evidence of the Defendant’s pr ior conviction under Federal Ru le of Evidence 404(b).” Order, July 27, 2015. We affirm. Defendant’s offense was discovered in November 2011 when he was stopped in Oklahoma for failure to signal as he exited to a toll plaza. See Turrentine , 542 F. App'x at 715–16. The car had been rented by his passenger, Jimmie Johnson. See id . at 716. After Defendant and John son gave differing accounts of thei r current travels, they were detained while a trained dog was brought to their vehicle. See id. The dog alerted to the presence of narcotics, and a search led to the discovery of 11 kilograms of powder cocaine hidden in the vehicle. See id. Before trial the government notified De fendant that it planned to introduce evidence of a prior co nviction to prove intent, knowledge, and absence of mistake. Defendant had pleaded guilty in 1999 in California federal c ourt to conspiracy to possess with intent to distribute co caine—the same offense as in his present case—and was sentenced to 108 months’ (nine years’) impr isonment. Defense counsel objected, arguing that the conviction bore no simila rity to the current offense, that it was too remote in3 time, and that its probative value was s ubstantially outweighed by its improper prejudicial effect. The judg e admitted the evidence, and Defendant was convicted. Counsel appealed but did not ra ise the Rule 404(b) issue. The question before us is whether omission of that issue constituted ineff ective assistance of appellate counsel. We hold that it did not. To prove that appellate counsel was ineffective under Strickland v. Washington , 466 U.S. 668 (1984), Defendant must show “(1) constitutio nally deficient performance, by demonstrating that his appellate counsel’ s conduct was objectively unreasonable, and (2) resulting prejudice, by dem onstrating a reasonabl e probability that, but for counsel’s unprofessional error(s), the result of . . . th e appeal . . . would ha ve been different.” Cargle v. Mullin , 317 F.3d 1196, 1 202 (10th Cir. 2003). Althou gh “[a] claim of appellate ineffectiveness can be based on counsel’s failur e to raise a particular issue on appeal, . . . counsel need not (and should not) raise ever y nonfrivolous claim, but rather may select from among them in order to maximize th e likelihood of success on appeal.” Id. (internal quotation marks omitted). The strength of th e omitted issue guides our assessment of the ineffectiveness claim. “If th e omitted issue is so plainly meritorious that it would have been unreasonable to winnow it out even fr om an otherwise strong appeal, its omission may directly establish deficient performance.” Id . “[I]f the omitted i ssue has merit but is not so compelling, the case for deficient pe rformance is more co mplicated, requiring an assessment of the issue relativ e to the rest of the appeal, and deferential consideration4 must be given to any professional ju dgment involved in its omission.” Id. And “if the issue is meritless, its omission will not constitute deficient performance.” Id

. Defendant contends that the evidence of his prior conviction was clearly inadmissible. He argues that the prior offense was too remo te in time and too dissimilar to be relevant, and that it was introduced only to show bad characte r and propensity to commit drug crimes. In particular, he cont ends that the district court improperly discounted the 12-year lapse between his prior conviction and his present offense by subtracting the period he was incarcerated. But there were sound reasons for his counse l to think that the chance of success on this issue was slim. To begin with, our standard of review of the district court’s decision is quite deferential. We review a decision to admit evidence unde r Rule 404(b) for abuse of discretion and “[w]e will not reverse a dist rict court's ruling if it falls within the bounds of permissible choice in the circumst ances and is not arbitrary, capricious or whimsical.” United States v. Moran , 503 F.3d 1135, 1143 ( 10th Cir. 2007) (internal quotation marks omitted). In Moran we addressed the decision to admit a 1994 conviction for possession of a firearm to show “knowledge, intent, and absence of mistake or accident” in the tr ial for a 2005 offense of be ing a felon in possession of a firearm. Id . at 1139, 1144. Although the defendant argued that “the past conviction was not similar enough in nature or close enough in time to the charged offense,” we held that the district court did not abus e its discretion in admitting it to show knowledge that a rifle was in the backseat of his girlfriend’s vehicle. Id. at 1144–46; see id. at 1146 (“The5 closeness in time and the similari ty in conduct were matters left to the trial court, and its decision will not be reversed absent a show ing of abuse of discretion.” (brackets and internal quotation marks omitted)). A panel of this court has since expressed some discomfort with Moran , see United States v. McGlothin , 705 F.3d 1254, 1263–64 n.13 (10th Cir. 2013), but that was after Defendant’s attorn ey filed his brief in his criminal appeal. Second, Defendant’s argument that the c onviction was too remote in time is not compelling. We have affirmed district-court decisions excluding the time of incarceration because during this period the defendant “obviously had no opportunity to commit other distribution offenses.” United States v. Cherry , 433 F.3d 698, 702 n.4 (10th Cir. 2005); see United States v. Brooks , 736 F.3d 921, 940 (10th Cir. 2013); United States v. Adams , 401 F.3d 886, 894 (8th Ci r. 2005) (15-year-old narcotics conviction relevant when defendant committed inst ant offense four years after being released). Defendant had been in custody for all but about thre e years between his 19 99 conviction and his 2011 offense. 1 Further, the evidence of Defendant’s prior conviction had special relevance in this case. One of the central issues at trial was whether Defendant knew of the presence of the cocaine hidden in the rented vehicle. Minutes after officers found the drugs, but before they had advised hi m of what they had found, Defendant said to himself “Nine

1 Besides serving his nine-year sentence on th e cocaine conviction, Defendant spent twoand-one-half years incarcerated on a fe deral money-laundering conviction.6 Years, Julius. Nine Years.” That statemen t would make little sense to the jury except that Defendant had previously been convicted on a cocaine charge and sentenced to nine years’ imprisonment. This statement is compelling evidence of knowledge. In our view, a reasonably competent attorn ey could have thought that raising the Rule 404(b) claim on appeal wo uld do little more than dist ract this court from more valuable arguments. And this appears to be what Defendant’s counsel on direct appeal decided as well. She submitted in the § 2255 proceedin g an affidavit e xplaining why she did not raise the issue on appeal. It stated in part: “After reviewing possible claims for Mr. Turrentine’s appeal, I decided to focus on challenges to the trooper’s alleged basis for the traffic stop and the trooper’s alleged justification to prolong the detention.” Teresa K. Brown Aff. ¶ 3 (D. Ct. Doc. 142-2). Notably, succeeding on the issue that was raised would have led to suppression of the only physical evidence and in all likelihood would have ended the prosecu tion against Defendant. Because the Rule 404(b) claim was not clearly meritorious, we must give “d eferential consideration” to this strategic choice by his counsel on direct appeal. Cargle , 317 F.3d at 1202. We cannot say that this was deficient performance. We AFFIRM the district court’s denial of Defendant’s claim of ineffective assistance of appellate counsel for failu re to raise the Rule 404(b) issue. We also DENY a COA on the two other issu es raised in this court by Defendant. He relies on Rodriguez v. United States , 135 S. Ct. 1609 (20 15), to challenge the extended detention of his vehicl e; but on his direct appeal we held that continuation of7 the stop was supported by reasonable suspicion. See Turrentine , 542 F. App'x at 720. And he challenges the failure of his counsel to appeal the district court’s exclusion of impeachment evidence on a collate ral matter; but the court’s ruling was clearly within its proper discretion. Appellant’s motion to proceed in forma pauperis is GRANTED.

ENTERED FOR THE COURT

Harris L Hartz Circuit Judge