NOTICE: Sеventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Harry McNEAL, also known as Major Thompson, also known as
Robert Lee, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 91-3171.
United States Court of Appeals, Seventh Circuit.
Submitted Dec. 14, 1992.*
Decided Dec. 16, 1992.
Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and PELL, Senior Circuit Judge.
ORDER
Harry McNeal was arrested after speeding away in a car from an area where two shots had been fired. He was convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), and this conviction was affirmed on appeal. United States v. McNeal,
I.
McNeal signed a stipulation before trial in which he аgreed that he had been previously convicted of a crime punishable by a term of imprisonment greater than one year, and that, if called to testify, a represеntative of Smith & Wesson would testify that the gun found in the car McNeal was driving had been shipped in interstate commerce. Appellant's Br. 4; Reply Br. 3. McNeal argues that this stipulation аmounted to a guilty plea, thus requiring the district court to advise him of his rights according to Federal Rule of Criminal Procedure 11.
We agree with the district court that by failing to raise this issue on dirеct appeal, McNeal has procedurally defaulted on it. He cannot raise it now unless he can demonstrate cause and prejudice. United States v. Frady,
Yet even if, through a very liberal construction of his brief, we determined that McNeal argues that he could not be expected to raise the Rule 11 argument on direct apрeal because it would call into question the effectiveness of his trial counsel (one of whom also served as his appellate counsel), then we find no prejudice. McNeal's whole argument rests on the mistaken notion that the stipulation amounted to a guilty plea. The elements of the crime of being a felon in possession of a firearm are threefold: (1) previous conviction of a felony, (2) knowing possession of a firearm, and (3) the possession was in or affected interstate commercе. McNeal,
McNeal relies on United States v. Brown,
II.
McNeal claims that his trial counsel rendered ineffective assistаnce because they failed to investigate a potentially exculpatory witness--one of McNeal's friends, Steve Corral.1 According to McNeal, he told his attornеys that he borrowed the car from Corral. He also claims that Corral would have testified that the car was his (Corral's) and that he did not tell McNeal about the gun under the front seat, which the arresting officer found. The district court found that McNeal had procedurally defaulted on this claim because he had not raised it on direct appeal. The court further found that McNeal had not demonstrated either cause for this failure or resulting prejudice.
We disagree with the district court that McNeal procedurally defaulted on his ineffective assistance of counsel claim. True, he did not raise it on appeal, but as McNeal argues, he was not required to do so because his appellate counsel also served as one of his attorneys at trial.2 Appellant Br. 5-6. It is not reasonable to expect counsel to question his or her own effectiveness. Velarde v. United States,
An attorney's performance fails to meet the requirements of the Sixth Amendment where (1) his performance falls below an objective standard of reasonableness, and (2) this deficient performance prejudices the defense. Strickland v. Washington,
We will find "prejudice" where there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would havе been different. Id. at 687-88, 694. In this case, even if McNeal's attorneys had put Corral on the stand and Corral testified as McNeal assures us he would, we do not believe that there is a reasonable probability that the outcome of the proceeding would have been different. Corral was not an eyewitness to the incident. All he could say was that he did not tell McNeal about the gun under the seat when he lent McNeal the car. Assuming that to be true, there is substantial evidence that McNeal somehow discovered the gun and used it. The arresting officer heard two shots; he then saw bystanders duck and point in the direction from which McNeal was coming. One of the bystanders pointed at the car McNeal was driving аs the car turned onto the street where the officer's car was parked. After pulling McNeal over and finding the gun, the officer noticed that the gun smelled as if it had just been fired. Hе also found three live cartridges and two expended cartridges. McNeal,
III.
McNeal also argues that the district court erred by failing to require the government to respond to his motion before dismissing it. The district court's decision to dismiss summarily a motion under § 2255 is reviеwed for abuse of discretion. United States v. Day,
The district court is authorized to dismiss summarily a § 2255 motion "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief." Rule 4(b) of the Rules Governing Section 2255 Proceedings. As the preceding discussion makes clear, McNeal plainly did not have any viable claims. Therefore, the district court did not abuse its discretion in summarily dismissing his § 2255 motion.
IV.
For the foregoing reasons, the judgment of the district court denying McNeal's § 2255 motion is AFFIRMED.
Notes
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful tо the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, thе appeal is submitted on the briefs and record
McNeal does not argue on appeal that his attorneys at trial were ineffective based on the stipulation thеy worked out with the government
Deborah J. Gubin served as both appellate counsel and trial counsel. See McNeal,
McNeal claims that the district court can dismiss a pro se § 2255 motion only where "it appears beyоnd doubt that the plaintiff would not be entitled to relief under any set of facts which could be proved in support of his claim." Appellant Br. 5. He cites Haines v. Kerner,