United States v. Castro-Cuellar

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 95-20764 Summary Calandar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUAN ERNESTO CASTRO-CUELLAR; ARACELY CASTRO, also known as Chela,

Defendants-Appellants.

--------------------- Appeal from the United States District Court for the Southern District of Texas (95-CV-3725) --------------------- July 1, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Juan Ernesto Castro-Cuellar appeals the denial of his motion

to vacate his sentence, filed pursuant to 28 U.S.C. § 2255. He

argues that the seizure of his home after his criminal conviction

constitutes a violation of the Double Jeopardy Clause. Castro's

home was forfeited pursuant to 21 U.S.C. § 853 and as a result of

the criminal proceeding that also resulted in his conviction. The

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 95-20764 -2-

Double Jeopardy Clause did not preclude the government from seeking

the full range of statutorily authorized criminal penalties in the

same proceeding, because the total punishment did not exceed that

authorized by law. United States v. Halper, 490 U.S. 435, 450

(1989).

Castro argues that he received ineffective assistance of

counsel at trial. Castro's allegations fail to show how the

purported deficient performance prejudiced his defense. Strickland

v. Washington, 466 U.S. 668, 687-94 (1984); Anderson v. Collins, 18

F.3d 1208, 1221 (5th Cir. 1994).

Castro asserts that the government engaged in prosecutorial

misconduct when the prosecutor presented hearsay evidence to the

grand jury and expressed an opinion as to his guilt. Prosecutorial

misconduct before the grand jury is deemed harmless after a guilty

verdict has been returned by a petit jury. United States v.

Mechanik, 475 U.S. 66, 70 (1986); Wilkerson v. Whitley, 28 F.3d

498, 503 (5th Cir. 1994), cert. denied, 115 S. Ct. 740 (1995).

Castro also argues that his right to a speedy trial was

violated, that his indictment was multiplicitous, and that the

statutes under which he was convicted are unconstitutional. None

of these issues was presented to the district court or rises to the

level of plain error so as to require review by this court. See

United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en No. 95-20764 -3-

banc), cert. denied, 115 S. Ct. 1266 (1995); see also Highlands

Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1031-32

(5th Cir. 1994), cert. denied, 115 S. Ct. 903 (1995).

Castro argues that the district court erred when it summarily

dismissed his motion and did not hold an evidentiary hearing. Rule

4(b) of the Rules Governing Section 2255 Proceedings permits

summary denial of a § 2255 motion. Moreover, because the record

conclusively showed that Castro was entitled to no relief, the

district court was not required to conduct an evidentiary hearing.

United States v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990), cert.

denied, 498 U.S. 1104 (1991); 28 U.S.C. § 2255.

AFFIRMED.