Price v. Cain

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 18, 1999
• Docket: 99-30232
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30232 Summary Calendar

MORRIS PRICE,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana (98-CV-3560-D) --------------------

November 17, 1999

Before POLITZ, WIENER, and DAVIS, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Morris Price, Louisiana prisoner #73632,

appeals from the denial of his application for federal habeas

corpus relief. Price contends that he received ineffective

assistance of counsel, arguing that counsel failed to obtain

disclosure of the CI’s identity and to pursue an entrapment

defense; and that counsel’s cumulative errors violated his

constitutional rights. Price also contends that, by failing to

allow counsel adequate time to prepare for trial, the district

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. court denied him effective assistance of counsel and, at the same

time, violated the Due Process Clause.

The district court did not issue a certificate of

appealability (COA) on Price’s due process issue, and he does not

seek a COA on that issue from us. We therefore lack jurisdiction

to consider Price’s due process contention. Whitehead v. Johnson,

157 F.3d 384, 388 (5th Cir. 1998).

Price has failed to show that counsel was deficient, see

Strickland v. Washington, 466 U.S. 668, 687 (1984), or that the

state trial court deprived him of effective assistance of counsel.

First, the state-court record reflects that no motion for a

continuance was made to allow newly retained counsel additional

time to prepare for trial. The district court need not have

granted a continuance on its own motion under the circumstances of

Price’s case. See Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.

1978). Second, the state-court record indicates that counsel in

fact was aware of the identity of the confidential informant and

that the state trial court ordered the cognizant police agency to

comply with counsel’s request for information regarding the

confidential informant’s reliability. Information about the

confidential informant’s alleged propensity to set up drug deals to

further his own drug habit might have been relevant to an

entrapment defense, but was not relevant to Price’s defense that he

was not involved at all in the drug transaction that led to his

conviction. Indeed, an entrapment defense would have been

2 inconsistent with Price’s denial of involvement, which he repeats

to us.

AFFIRMED.