UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 12, 2004

Decided May 19, 2005

Before

Hon. DIANE P. WOOD, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 03-2502

LEONARD E. CARTER,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 00-C-1412

Rudolph T. Randa, 

Chief Judge.

O R D E R

On July 21, 1998, Leonard Carter was convicted by a jury for possession of a

firearm by a felon and possession of marijuana. Following sentencing, Carter filed

a motion pursuant to 28 U.S.C. § 2255 to correct, vacate or set aside his sentence. 

The district court denied that motion, finding that Carter’s trial attorney rendered

effective assistance and that any similar claim against his appellate counsel was

moot. Carter appeals the district court’s denial of his § 2255 motion, arguing that

his trial counsel performed deficiently by failing to: (1) stipulate to his prior felony

convictions; (2) argue properly the effect of his three juvenile adjudications for

armed robbery; and (3) challenge effectively the search warrant. Carter also claims
No. 03-2502 Page 2

his attorney on direct appeal rendered ineffective assistance by advising Carter to

withdraw his appeal and for failing to pursue his Fourth Amendment, evidentiary

and sentencing claims. Because the record on appeal fails to reveal either deficient

performance by counsel or prejudice to Carter, we affirm the district court’s denial

of his § 2255 motion. 

I. BACKGROUND

On March 23, 1998, Milwaukee police officers executed a search warrant at a

Milwaukee apartment and found the following items in one of the apartment’s two

bedrooms: a small bag of marijuana, a .22 caliber Intratec pistol under the

mattress, a .45 caliber Webley revolver in the closet, and unfired ammunition for

both the .22 caliber and .45 caliber pistols. The defendant, Leonard Carter, who

was alone in the apartment at the time of the search, told the officers that he had

spent the night in the bedroom in which the weapons were found. During

questioning, and before he was ever informed what type of guns were recovered,

Carter was able to accurately describe the weapons. He also said that he would

take responsibility for the .22 caliber pistol and the marijuana because he did not

want to put them off on his girlfriend who lived in the apartment. Carter indicated

that he found the .22 caliber handgun two weeks prior at the Westlawn Housing

Project. He later admitted that he purchased the .45 caliber pistol on the street. 

On April 21, 1998, a grand jury indicted Carter in the Eastern District of

Wisconsin, charging him with one count of felon in possession of a firearm and one

count of possession of marijuana. After a trial, the jury convicted Carter of both

counts. He was sentenced to 260 months imprisonment on the felon in possession

count and 12 months for the marijuana count, with the sentences to run

concurrently.

Carter’s trial counsel, Mark Stern, withdrew, and this court appointed

Michael Backes to represent the defendant in his direct appeal. In his opening

brief, Backes raised a sufficiency of the evidence claim and an ineffective assistance

of counsel claim. In his reply brief, however, Backes indicated that the appeal

should be dismissed because the sufficiency of the evidence claim lacked merit and

the ineffective assistance of counsel claim would be more appropriate in a 28 U.S.C.

§ 2255 petition. This court ordered the appeal dismissed “with the understanding

that [the dismissal was] without prejudice to presenting in a timely collateral

attack any appropriate argument, including an argument that Carter did not

receive effective assistance of counsel.” Backes then withdrew.

Subsequently, Carter filed a pro se § 2255 petition and the court appointed

Carter’s current counsel, who filed a supplemental brief on Carter’s behalf. On

March 31, 2003, the district court denied Carter’s § 2255 motion. On appeal, Carter

argues the following: trial counsel rendered ineffective assistance by failing to

stipulate as to the nature of Carter’s prior convictions; trial counsel was ineffective

for failing to object to the use of juvenile adjudications to enhance Carter’s sentence;
No. 03-2502 Page 3

trial counsel was ineffective for not challenging the search warrant; and appellate

counsel rendered ineffective assistance by advising the defendant to dismiss his

appeal.

II. ANALYSIS

In assessing ineffective assistance of counsel claims, this court employs the

two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). That

inquiry asks: (1) whether counsel’s performance fell below an objective standard of

reasonableness; and (2) whether the defendant was prejudiced by counsel’s

deficient performance. Id. at 687. With regard to the objectively unreasonable

performance element, the test is “highly deferential,” presumes reasonable

judgment, and avoids second guessing counsel’s strategic decisions. United States

v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997). Concerning the second prong, this

court will find prejudice where there is a “reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different.” Id. 

A. Trial Counsel’s Failure to Stipulate to Prior Convictions

The jury convicted Carter under 18 U.S.C. § 922(g)(1), which generally

prohibits felons from possessing firearms. For reasons unknown, Carter’s trial

counsel did not accept the government's offer to stipulate to the fact that Carter had

the requisite prior felony conviction under § 922(g). Instead, the government

presented the jury with certified copies of two prior convictions, one for felony

recklessly endangering safety and the other for felony possession with intent to

distribute cocaine. Because the government’s stipulation would have shielded from

the jury the substance of Carter’s prior convictions, as opposed to their mere

existence, Carter contends that his trial counsel rendered ineffective assistance by

failing to accept the government’s offer. 

Carter argues that the substance of a prior conviction is presumptively

inadmissible, and relies principally on Old Chief v. United States, 519 U.S. 172

(1997) for support. Old Chief held that a district court abused its discretion under

the Federal Rules of Evidence by refusing to allow a defendant, prosecuted under §

922(g), to concede the fact of his prior conviction. Id. at 174. We disagree with

Carter’s assertion that Old Chief compels us to find that trial counsel performance

was deficient because he did not stipulate to the prior conviction.

We can only speculate as to why Carter’s trial counsel declined to stipulate.

Carter may have refused to allow counsel to do so. See United States v. Holman,

314 F.3d 837, 844 (7th Cir. 2002) (recognizing that counsel may not stipulate to a

defendant’s status as a convicted felon, one of the elements of the offense, without

that defendant’s consent). Perhaps also, as the government surmises, Carter’s

counsel made the strategic decision to allow the nature of the convictions to be

presented to the jury during the government’s case in chief because Carter had
No. 03-2502 Page 4

already decided to testify, and counsel wanted the nature of the prior judgments

revealed before his client took the stand. See Fed. R. Evid. 609. 

In any event, we need not decide whether Carter’s trial counsel was deficient

for not stipulating, as Carter cannot show prejudice. See United States v.

Asubonteng, 895 F.2d 424, 428-9 (7th Cir. 1990) (“Even if the record is

insufficiently developed, we need not remand to the district court if we determine

that the defendant cannot establish that he or she suffered some prejudice.”). The

evidence against Carter was substantial; he was found alone with the drugs and

guns, Carter confessed that they belonged to him, and a police officer testified that

he described the weapons before being advised by police as to what types of

firearms they recovered from the apartment.

B. Consideration of Defendant’s Juvenile Armed Robbery Adjudications Under

the Armed Career Criminal Act, 18 U.S.C. § 924(e)

The district court increased Carter’s sentence pursuant to the Armed Career

Criminal statute, 18 U.S.C. § 924(e)(1), based on his two prior qualifying adult

offenses and his three juvenile armed robbery adjudications. Carter contends that

his trial counsel performed deficiently at sentencing by failing to challenge the use

of Carter's juvenile adjudications in the consideration of whether Carter qualified

for the enhancement. 

A defendant qualifies for the Armed Career Criminal enhancement if he has

three prior convictions “for a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). A

“conviction includes a finding that a person has committed an act of juvenile

delinquency involving a violent felony.” 18 U.S.C. § 924(e)(2)(c). The statute

defines the term “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year,

or any act of juvenile delinquency involving the use or carrying of a

firearm, knife or other destructive device that would be punishable by

imprisonment for such term if committed by an adult. 

§ 924(e)(2)(B) (emphasis added). All of Carter’s armed robbery juvenile

adjudications involved the use of firearms and, therefore, qualify as violent felonies

properly considered for purposes of the Armed Career Criminal enhancement. 

Carter contends that we should ignore the statute’s explicit references to

juvenile adjudications and, instead, look to the definition of the phrase “crime

punishable by imprisonment for a term exceeding one year,” which was used in the

aforementioned definition of “violent felony.” Section 18 U.S.C. § 921(a)(20)

provides:

what constitutes a conviction of [a crime punishable by imprisonment

for a term exceeding one year] shall be determined in accordance with
No. 03-2502 Page 5

the law of the jurisdiction in which the proceedings were held. Any

conviction which has been expunged, or set aside or for which a person

has been pardoned or has had civil rights restored shall not be

considered a conviction for the purposes of this chapter unless such

pardon, expungement, or restoration of civil rights expressly provides

that the person may not ship, transport, possess or receive firearms. 

In Wisconsin, the state where Carter’s juvenile proceedings were held, juvenile

judgments were not considered convictions for crimes at the time of Carter’s

adjudications. Wis. Stat. § 48.35 (1993-94). Thus, Carter argues his juvenile

adjudications should not have been taken into consideration during sentencing. 

Carter’s argument fails, however, since his reading ignores the plain language of §

924(e), which expressly includes within its scope armed juvenile adjudications.

Consequently, trial counsel was not deficient for declining to pursue this line of

argument. 

C. Failure to Challenge Search Warrant

Although Carter’s trial counsel made a general motion to suppress the

evidence seized in the case, he did not challenge the search warrant. Carter argues

that his trial counsel rendered ineffective assistance by merely filing a conclusory

and ineffective motion requesting suppression generally.

The district court rejected Carter’s ineffective assistance claim relying on

United States v. Evans, 131 F.3d 1192, 1193 (7th Cir. 1997), which found: “an

attorney’s failure to achieve suppression of probative evidence cannot be ineffective

assistance, because the defendant cannot show ‘prejudice’ from the use of evidence

that increases the probability of an accurate verdict.” (citing Holman v. Page, 95

F.3d 481 (7th Cir. 1996)). Since the district court’s ruling, this court has overruled

that aspect of Holman. See Owens v. United States, 387 F.3d 607 (7th Cir. 2004). 

In Owens, we held that “the test of prejudice to be used in applying the standard of

the Strickland case for ineffective assistance of counsel is not whether it would

somehow offend fairness (a standard independently objectionable because of its

vagueness) to allow the judgment to stand despite the defense lawyer’s incompetent

performance but whether that performance deprived his client of a ‘substantive or

procedural right to which the law entitled him.’” 387 F.3d at 611 (quoting Williams

v. Taylor, 529 U.S. 362, 392-5, 120 S.Ct. 1495 (2000)). In light of Owens, our task

in assessing Carter’s claim of prejudice is now whether counsel’s conclusory motion

deprived Carter of a procedural right entitled to him by the law.

It is clear, upon review of this record, that counsel’s conclusory motion did

not deprive Carter of any right because even a more elaborate attempt by Carter’s

lawyer to suppress the evidence would have been futile as the search warrant was

supported by probably cause. The affidavit supporting the search warrant (1)
No. 03-2502 Page 6

specifically described the area to be searched, (2) indicated that 72 hours prior, an

informant who had provided reliable information that had resulted in convictions in

the past had made a controlled purchase at the residence, (3) alleged that the same

informant saw a handgun while in the residence, (4) noted that an anonymous

citizen claimed there were three handguns in the residence, and (5) stated that

Leonard Carter was recently paroled for drugs and was in the residence, and that

his girlfriend, Evelyn Carter, who lived in the home, was involved in drug activity. 

See United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991) (finding warrant

based largely on informant’s recent drug buy was supported by probable cause).

In any event, even if the warrant was not supported by probable cause, the

officers here were entitled to rely on the good faith exception to the exclusionary

rule as set forth in United States v. Leon, 468 U.S. 897, 926 (1984). To qualify for

the good faith exception, the officers conducting the search must be able to manifest

objective good faith belief in the validity of the warrant. Leon, 468 U.S. at 926. 

Absent the allegation that the issuing judge “abandoned his detached and neutral

role, suppression is appropriate only if the officers were dishonest or reckless in

preparing their affidavit or could not have harbored an objectively reasonable belief

in the existence of probable cause.” Id. Based on the details of the warrant and

particularly the reliability of the informant, the allegation that Carter’s girlfriend

was also involved with drugs, the separate witness who claimed he saw firearms in

Carter’s residence, and the absence of any facts that would indicate any impropriety

on behalf of the officers, demonstrate that the good faith exception would apply

here. Because no viable suppression argument existed, Carter’s trial counsel was

not objectively deficient for failing to challenge the search warrant.

D. Appellate Counsel’s Advice to Dismiss Appeal and Proceed Through a § 2255

Motion

As a final argument, Carter contends that appellate counsel was ineffective

for first advising Carter to withdraw his appeal (with the understanding that a §

2255 attack would be brought later) and then subsequently withdrawing from the

case leaving Carter without representation. The standards for establishing

ineffective assistance of counsel when handling appeals are identical to those

established by Strickland. Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986). 

Because, as discussed above, none of Carter’s ineffective-assistance-of-trial-counsel

claims had merit, appellate counsel was not deficient for deciding not to pursue

those claims. And, to the extent that Carter is arguing that counsel was deficient

for not pursuing his Fourth Amendment argument on direct appeal, that claim also

fails because, as we have already discussed, any challenge to the search warrant

would have been futile. See Gray, 800 F.2d at 646 (holding that only appellate

counsel's failure to challenge “significant and obvious” issues will result in a finding

of deficiency). 
No. 03-2502 Page 7

III. CONCLUSION

The judgment of the district court is AFFIRMED.