Melvin Jackson was convicted of felony firearm possession after he was involved in an alleged shooting.
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To determine his base offense level, the district court applied U.S.S.G. § 2A2.1(a)(1) and sentenced him to 120 months. See U.S.S.G. § 2K2.1(c)(1). After an unsuccessful direct appeal, Jackson filed this pro se petition under 28 U.S.C. § 2255, asserting that his counsel rendered ineffective assistance when he did not object to the application of § 2A2.1(a)(1). See United States v. Jackson, 662 F. Appx 310, 319 (5th Cir. 2016) (affirming conviction but vacating and remanding sentence); 700 F. Appx 392 (5th Cir. 2017) (affirming sentence). The district court denied Jacksons petition, and we granted a certificate of appealability on the ineffective assistance claim.
In evaluating a district courts denial of a § 2255 motion, we review its factual findings for clear error and its conclusions of law de novo. United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). We review ineffective assistance claims de novo. Id.
To prevail on his ineffective assistance claim, Jackson must establish that (1) counsels performance was deficient in that it “fell below an objective standard of reasonableness,” and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our review of counsels performance is “highly deferential,” and we “indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052.
Jackson argues his counsels failure to object was deficient because binding caselaw required a showing of specific intent to kill for the § 2A2.1(a)(1) sentencing enhancement to apply.
To provide constitutionally adequate performance, counsel must “research relevant facts and law, or make an informed decision that certain avenues will not be fruitful.” United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003) (quoting United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000)). Counsel must also discover and bring to the courts attention “[s]olid, meritorious arguments based on directly controlling precedent.” Id.
As a preliminary point, the record belies counsels alleged deficiency because counsel timely objected at sentencing to the application of § 2A2.1(a)(1) on mens rea grounds; counsel thus brought this argument to the courts attention. Moreover, Jacksons argument that counsel should have objected based on insufficient evidence of specific intent to kill is unavailing because that objection would not have been meritorious. Jackson relies on the Supreme Courts decision in Braxton v. United States, 500 U.S. 344, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991), but that decision is not directly controlling. Braxton addressed the mens rea showing for attempted killing under 18 U.S.C. § 1114. Id. at 350–51, 111 S.Ct. 1854. However, § 2A2.1(a)(1) incorporates the mens rea showing for murder under 18 U.S.C. § 1111. See U.S.S.G. § 2A2.1 cmt. 1. Plus, at the time of Jacksons sentencing, our decision in United States v. Villanueva directly contradicted the objection that Jackson argues his counsel should have made. 541 F. Appx 486, 487 (5th Cir. 2013). Although Villaneuva was an unpublished opinion, its reasoning was based on the text of § 1111 and binding, precedential caselaw interpreting that text. Id. (citing United States v. Shaw, 701 F.2d 367, 392 n.20 (5th Cir. 1983); United States v. Lemus-Gonzalez, 563 F.3d 88, 92 (5th Cir. 2009)).
Jackson has thus failed to show that his counsels performance was deficient, and we do not address whether Jackson has shown that counsels performance prejudiced him. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
We AFFIRM the district courts denial of Jacksons § 2255 petition.
FOOTNOTES
FOOTNOTE
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. Jackson was also convicted of a drug trafficking conspiracy and possession with the intent to distribute heroin, but those convictions are not relevant to this appeal.
Per Curiam:*
FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.