UNITED STATES of America, Plaintiff-Appellee, v. Ralphfield HUDSON, Defendant-Appellant, 49 F. App'x 79

ORDER Twice within approximately one month, Rockford, Illinois, police found Ralphfield Hudson in a house with crack and a gun. In January 2002 a jury found him guilty of two counts of possessing cocaine base with intent to distribute, see 21 U.S.C. § 841(a)(1), and of possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1). The district court sentenced him to two concurrent terms of 480 months’ incarceration on the distribution counts, and to a concurrent term of 360 months’ incarceration on the firearm count. Hudson’s appointed counsel has now moved to withdraw under Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because she is unable to identify a nonfrivolous issue for appeal. Hudson responded to counsel’s motion, see Circuit Rule 51(b), and we confine our review of the record to the potential issues identified in counsel’s facially-adequate brief and Hudson’s response. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). Counsel first examines whether Hudson could make a nonfrivolous argument that the district court erred by denying his motion to suppress evidence seized during the second search of the crack house.

In evaluating this potential claim, we would review the court’s legal conclusions de novo and its factual findings for clear error. See United States v. Yang, 286 F.3d 940, 944 (7th Cir.2002). The district court denied the motion because in its view the search pursuant to a warrant was supported by probable cause. See Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

We agree with counsel that the supporting affidavit established probable cause for the second search; it set forth details about a controlled purchase of crack made at the house by a confidential informant three days earlier, cited recent complaints by concerned neighbors of foot traffic around the house, and detailed the prior search which led to the seizure of narcotics and of a firearm. See United States v. Romo, 914 F.2d 889, 898 (7th Cir.1991).

But even if probable cause was lacking, Hudson made no showing (nor did he even suggest) that the police lacked a reasonable and good-faith belief that probable cause supported the warrant. See United States v. Leon, 468 U.S. 897, 918-23 (1984). Consequently, we agree with counsel that a potential challenge on this ground would be frivolous. Counsel and Hudson both evaluate whether Hudson could challenge the government’s peremptory strike of the only African-American juror in the venire. Trial counsel objected under Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), but the district court denied the Batson motion on the ground that the government had articulated an adequate reason for exercising the peremptory challenge. To survive a Batson challenge, a peremptory strike need not be based on a strong or good reason, only founded on a reason other than race or gender. United States v. James, 113 F.3d 721, 729 (7th Cir.1997).

Here, Hudson’s claim that the court clearly erred by rejecting the Batson challenge is frivolous-the government stated that it was excusing the juror because he had a third-grade education and had three stepsons with pri- or drug convictions, and Hudson made no showing that a comparable white juror was selected despite similar concerns. Counsel next looks at whether the evidence was sufficient to support Hudson’s convictions for possessing crack with intent to distribute and of possession of a firearm by a felon.

We would evaluate such claims deferentially, considering the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor. United States v. Taylor, 226 F.3d 593, 596 (7th Cir.2000). We agree with counsel that sufficient evidence established that Hudson knowingly possessed an illegal substance with the intent to distribute it. See 21 U.S.C. § 841(a)(1); United States v. Martinez, 301 F.3d 860, 865 (7th Cir.2002).

During the first search of the crack house, police found Hudson in a northeast bedroom that contained crack, baggies, a gun, and his clothes hanging in the closet. Police also found crack and scales elsewhere in the house. During the second search approximately one month later, police found Hudson in a bathroom with crack, and also discovered two-way radios, a scale, and baggies. Moreover, a witness testified that he had purchased crack from Hudson five or six times in the past.

We also agree with counsel that sufficient evidence supported the jury’s finding that Hudson was a felon who possessed a firearm that traveled in interstate commerce. See 18 U.S.C. § 922(g)(1); United States v. Wallace, 280 F.3d 781, 784 (7th Cir.), cert. denied, — U.S. -, 122 S.Ct. 2641, 153 L.Ed.2d 820 (2002). Hudson stipulated that he was a convicted felon at the time of the first search.

And though Hudson claims that he did not possess the gun, there was sufficient evidence suggesting otherwise-a police detective testified that he saw Hudson put a small dark object under a pillow that was discovered to be an Italian-made .25 caliber handgun. Hudson’s response proposes additional grounds for appeal. He first contends that his trial counsel was ineffective for mounting an insufficient challenge to the government’s peremptory strike.

As we previously noted, any challenge to the strike would be frivolous; thus, a potential claim that counsel was ineffective for not prevailing in his objection to the strike would also be frivolous. Moreover, claims for ineffective assistance are generally not appropriate on direct appeal, and are better raised in a collateral attack because the record is often insufficient at this stage for a complete review. United States v. Schuh, 289 F.3d 968, 976 (7th Cir.2002). Hudson’s remaining complaints are frivolous.

He contends that the district court improperly steered the jury to find him guilty of the firearm charge by instructing them that Hudson was a convicted felon. But the court did no such thing; instead, it properly told the jury to consider evidence that Hudson previously had been convicted of a felony, and only for the purpose of evaluating his guilt on the § 922(g)(1) charge. Hudson also argues that his § 922(g)(1) conviction was improper because the jury found him not guilty of possessing a firearm in relation to a drug trafficking crime, see 18 U.S.C. § 924(c).

Hudson claims that these verdicts were inconsistent. But inconsistent verdicts are permissible in criminal cases, United States v. Powell, 469 U.S. 57, 65-69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), and the verdicts were not inconsistent in any event-the two offenses have different elements. Finally, Hudson asserts that counsel’s motion to withdraw violates his right to appeal, but there is no right to proceed with a frivolous appeal. Chan v. Wodnicki, 67 F.3d 137, 139 (7th Cir.1995). Accordingly, we Gkant counsel’s motion to withdraw and Dismiss the appeal.