United States v. Harris

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 97-50957 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OTIS HARRIS, III,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (P-89-CR-134-1, P-95-CA-076) _________________________________________________________________

August 4, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Otis Harris appeals the partial denial of his 28 U.S.C. § 2255

motion to vacate his sentence for possession of cocaine with intent

to distribute, in violation of 21 U.S.C. § 841. (The district court

granted relief regarding Harris’ conspiracy conviction under 21

U.S.C. § 846; the Government does not cross-appeal.)

Of course, for a challenge to the denial of a § 2255 motion,

we review findings of fact for clear error and conclusions of law

de novo. E.g., United States v. Ramos-Rodriguez, 136 F.3d 465, 467

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

- 1 - (5th Cir. 1998). Harris contends that he was denied effective

assistance of counsel because his trial counsel failed to interview

witnesses, to request exculpatory material under Brady v. Maryland,

373 U.S. 83, 87 (1963), and to move to suppress evidence;

erroneously stipulated to a chemist’s report; failed to object to

prosecutorial comments regarding drug use during the events in

question, post-arrest silence, and Harris’ failure to call certain

witnesses; failed to object to the prosecutor bolstering a witness’

credibility; failed to move for an acquittal; advised Harris to

testify; failed to object to unreliable testimony; failed to stress

the lack of fingerprint evidence; suggested to the jury that it

convict on a lesser-included offense; and failed to object to the

jury instruction on deliberate indifference. He also claims

ineffective assistance because his appellate counsel failed to

claim ineffective assistance of his trial counsel. And, he claims

prosecutorial misconduct; and that the district court should have

held an evidentiary hearing. We find no reversible error for

essentially the reasons stated by the district court in its

comprehensive and well-reasoned opinion. Harris v. United States

of America, No. P-95-CA-076-F (W.D. Tex. April 30, 1997). Harris’

motion for appointment of appellate counsel is DENIED.

AFFIRMED; MOTION FOR APPOINTMENT

OF APPELLATE COUNSEL DENIED

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