United States v. Richard Tucker, 434 F. App'x 355

Tucker was convicted in 2002 of securities fraud and mail fraud following a jury trial.
He received 120 months’ imprisonment, 3 years’ supervised release, and $15,219,965.37 restitution.
On direct appeal, this court upheld the conviction and sentence despite a challenge to unanimity-of-theory instructions.
Tucker later sought § 2255 relief alleging ineffective assistance of trial and appellate counsel, which the district court denied.
On remand, an evidentiary hearing was held; the magistrate recommended denial, which the district court adopted; Tucker appealed.
This court granted COA on two issues related to ineffective assistance and unanimity-of-theory instructions; the court ultimately affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for not seeking unanimity instruction	Tucker argues trial counsel’s failure to request unanimity was deficient.	Tucker cannot show prejudice; general unanimity suffices under precedent.	Trial counsel not ineffective; no clear error in denial.
Appellate counsel's handling of plain error claim	Appellate counsel failed to brief unanimity plain error effectively.	There was no entitlement to unanimity instruction; appellate briefing was reasonable.	Appellate counsel not ineffective; no reversible plain error.

Gipson v. United States, 553 F.2d 453 (5th Cir. 1977) (unanimity principles; limits on required unanimity theory)
Holley v. United States, 942 F.2d 916 (5th Cir. 1991) (unanimity where indictment duplicitous; need for unanimity-theory instruction)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance)
Jones v. Barnes, 463 U.S. 745 (U.S. 1983) (role of appellate counsel in selecting issues)
Holley v. United States, 942 F.2d 916 (5th Cir. 1991) (unanimity and duplicitous indictments; framework for analysis)