United States v. Rodriguez

Opinion

No. 98-20040 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20040 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSÉ LUIS RODRIGUEZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-89-CR-229-3 - - - - - - - - - -

May 26, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

José Luis Rodriguez, federal prisoner # 00582-424, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion. Rodriguez

contends that the district court erred by denying his § 2255 motion

without an evidentiary hearing. He contends also that the district

court abused its discretion by denying his motion to supplement the

record.

Rodriguez has abandoned his ineffective-assistance claim by

failing to brief it in this court. See Brinkmann v. Dallas County

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-20040 -2-

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987)(issues not

briefed on appeal are abandoned). Rodriguez argues in his reply

brief his ineffective-assistance claim that counsel failed to

interview potential exculpatory witnesses and raises an additional

claim that counsel discouraged exculpatory witnesses from

testifying. We will not consider issues raised for the first time

in a reply brief. See United States v. Jackson, 50 F.3d 1335, 1340

n.7 (5th Cir. 1995)(arguments raised for the first time in a reply

brief are waived).

The district court did not abuse its discretion by denying

Rodriguez’ § 2255 motion without conducting an evidentiary hearing

and on the basis of the affidavits presented to the district court.

See United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).

Rodriguez’ evidence demonstrated that counsel contacted the

potential witnesses and decided as a matter of trial strategy not

to have them testify at trial.

Rodriguez has not shown that the district court abused its

discretion by denying his motion to supplement the record, which

was filed after judgment denying the § 2255 motion was entered.

Rodriguez’ motion was essentially one to amend his § 2255 motion to

add a new claim, and leave of court was required to do so. See

Fed. R. Civ. P. 15(a).

The decision of the district court is AFFIRMED.