Aberly v. Johnson

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-20521 Summary Calendar

RUSSELL DWAINE ABERLY, Petitioner-Appellant,

versus GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas (CA-H-94-193) April 22, 1996

Before POLITZ, Chief Judge, KING and DENNIS, Circuit Judges. PER CURIAM:*

Russell Dwaine Aberly appeals the dismissal of his second federal habeas

corpus petition under 28 U.S.C. § 2254. The trial court found abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases. Aberly’s first federal

habeas petition, alleging ineffective assistance of counsel, was dismissed with

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. prejudice. We affirmed that dismissal for lack of prosecution. The instant petition again raises the ineffective assistance of counsel claim, adding an additional reason.

The trial court dismissed and denied a request for a certificate of probable cause.

We granted CPC. Having considered the briefs and record, on the basis of the findings of fact,

authorities cited, and reasons assigned by the trial court in its Order rendered June

14, 1995 and entered June 15, 1995, the judgment appealed is AFFIRMED.