Newton v. West

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-50522 Summary Calendar

CARLOS BERNARD NEWTON,

Petitioner-Appellant,

versus

TIM WEST, Asst. Warden; STATE OF TEXAS; GARY L. JOHNSON, DIR., TEXAS DEP’T OF CRIM. JUSTICE, INST’L DIV.,

Respondents-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. MO-95-CV-278 - - - - - - - - - - March 13, 1998 Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

Carlos Bernard Newton (#664876), a state prisoner, has

appealed the district court’s judgment dismissing his petition

for a writ of habeas corpus raising several ineffective-

assistance-of-counsel claims. See Strickland v. Washington, 466

U.S. 668, 687 (1984). Newton contends that his attorney met with

him only once prior to the trial. The state habeas court found

otherwise, and its findings of fact are presumptively correct.

See Marshall v. Lonberger, 459 U.S. 422, 432 (1983).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 97-50522 -2-

Newton contends that his attorney erred in failing to

subpoena and call his codefendants as witnesses. The state

habeas court’s finding that Newton’s attorney had determined that

the codefendants would not offer favorable testimony is

presumptively correct. Id. at 432. Newton contends that an

“affidavit” signed by codefendant Hernandez proves that Hernandez

would have “cleared” Newton if he had been subpoenaed to testify

and that Newton had never possessed drugs or drug paraphernalia.

Hernandez’ statement, if true, does not establish that counsel

was professionally unreasonable in relying on the representations

of Hernandez’ attorney regarding the favorability of Hernandez’

testimony. See Black v. Collins, 962 F.2d 394, 401 (5th Cir.

1992). A hearing was not required because the record before the

court was adequate for disposition of the case. Joseph v.

Butler, 838 F.2d 786, 788 (5th Cir. 1988).

Newton contends that his attorney failed to seek pretrial

discovery and suppression of illegally obtained evidence. These

claims are not supported by the record.

Newton has failed to show that he was prejudiced by his

attorney’s failure to lodge an objection under Batson v.

Kentucky, 476 U.S. 79 (1986).

Because Newton admitted, during the guilt/innocence phase of

the trial, that the facts underlying the enhancement counts of

the indictment were true, Newton cannot show that his attorney No. 97-50522 -3-

was professionally unreasonable in advising Newton to plead true

to those counts during the penalty phase of the trial.

Newton contends that counsel failed to subpoena alibi

witnesses and failed to move for a new trial. Newton did not

have an alibi defense, and his attorney did move for a new trial.

Newton contends that his attorney was ineffective in failing

to prove his innocence through the use of blood and DNA testing

of a syringe. Limitations on counsel’s investigation are

reasonable to the extent that reasonable professional judgement

supported such limitations. Black, 962 F.2d at 401. The

arresting officer testified that he saw Newton injecting himself

with narcotics. There was no reason to believe that Newton’s

blood and DNA would not be found in the syringe and their absence

would not necessarily exculpate Newton. This argument fails both

prongs of the Strickland test.

Newton raises a variety of issues for the first time in his

reply brief, including his contention that the arresting officer

was motivated against him by racial animus and that evidence

regarding the actions of another officer was not disclosed to the

defense, in violation of the rule in Brady v. Maryland, 373 U.S.

83 (1963). Because these issues are raised for the first time in

Newton’s reply brief, we do not consider them. Knighten v.

Commissioner, 702 F.2d 59, 60 & n. 1 (5th Cir. 1983).

Newton contends in passing that the district court erred in

failing to appoint counsel. Other than to argue that his case is No. 97-50522 -4-

complex, Newton does not suggest why the interests of justice

would have been served by appointment of counsel. See Schwander

v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).

The district court’s judgment is AFFIRMED.