United States v. Harris ( 1999 )

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this opinion should not be published and is not precedent except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.
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(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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