United States v. Erwin ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10798
USDC No. 3:84-CR-168-P
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRELL DEFARIS ERWIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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December 20, 1995
Before KING, SMITH and BENAVIDES, Circuit Judges.
PER CURIAM:*
Tyrell Erwin appeals the denial of his motion for relief
under 28 U.S.C. § 2255. Erwin's motions for leave to proceed in
forma pauperis, appointment of counsel, and release pending
appeal are DENIED.
We do not consider Erwin's contention, raised for the first
time on appeal, that the district court constructively amended
his indictment by allowing the jury to convict him of
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-10798
-2-
counterfeiting. No manifest injustice results from our refusal
to entertain Erwin's contention; Erwin already had been convicted
of counterfeiting and the jury instructions did not allow the
jury to convict of counterfeiting again. Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991).
The district court did not constructively amend Erwin's
indictment by failing to correctly instruct the jury regarding a
racketeering nexus, nor was counsel ineffective for failing to
raise Erwin's constructive amendment contention. We found in
Bonnie Erwin's § 2255 appeal that the district court adequately
instructed the jury regarding a racketeering nexus.
We do not entertain Erwin's contentions regarding grand jury
misconduct and that he was indicted for cocaine offenses based on
hearsay; contentions raised for the first time on appeal. Those
contentions would require us to make factual determinations; we
do not make such determinations. Varnado, 920 F.2d at 321.
Counsel was not ineffective for failing to raise a timely
objection to the Government's use of peremptory strikes, pursuant
to Batson v. Kentucky, 476 U.S. 79 (1986). Erwin's trial
occurred in December 1984; Batson was decided on April 30, 1986,
almost two years later. Counsel was not ineffective for failing
to anticipate Batson.
Erwin does not develop his contention that counsel was
ineffective for failing to obtain information regarding grand
jury and petit jury selection procedures and failing to challenge
those procedures beyond merely stating them. He has failed to
brief that issue for appeal. Yohey v. Collins, 985 F.2d 222, 225
No. 95-10798
-3-
(5th Cir. 1993).
The statute allowing the Drug Enforcement Administration
(DEA) to place drugs temporarily on the schedules of controlled
substances, 21 U.S.C. § 811(h), was enacted in 1984. The DEA had
placed phenmetrazine on schedule II and pentazocine on schedule
IV of the schedules of controlled substances before 21 U.S.C.
§ 811(h) was enacted. See 21 C.F.R. §§ 1308.12(d)(3),
1308.14(f)(1)(April 1, 1984 & April 1, 1982). Because
phenmetrazine and pentazocine were on the schedules of controlled
substances before the statute on which Erwin relies was enacted,
Erwin's contentions that the DEA failed to follow the procedures
in 21 U.S.C. § 811(h) and that counsel was ineffective for
failing to raise the issue are without merit.
Erwin's contentions that his convictions violated the Double
Jeopardy Clause and that his punishment was disproportionate
because the Government obtained forfeiture of his assets is
without factual basis. The Government sought and obtained
forfeiture of property against Bonnie Erwin only, not against
Tyrell Erwin.
The record before this court is sufficient for determination
of Erwin's contentions. No evidentiary hearing is necessary.
United States v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990),
cert. denied, 498 U.S. 1104 (1991).
APPEAL DISMISSED. See 5TH CIR. R. 42.2.