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 1995-03

United States v. Benjamin ( 1995 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-30047
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ALONZO BENJAMIN,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Wester District of Louisiana
USDC No. 94-CV-1882 (92-CR-20007)
- - - - - - - - - -
March 21, 1995
Before GARWOOD, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that James Alonzo Benjamin's motion for leave
to proceed in forma pauperis is DENIED.     Benjamin has not shown
that he will present a nonfrivolous issue on appeal.      Carson v.
Polley,
    689 F.2d 562
    , 586 (5th Cir. 1982).      Because the appeal is
frivolous, it is DISMISSED.     See 5th Cir. R. 42.2.
Benjamin argues that he was denied effective assistance of
counsel because his attorney was preoccupied with his wife's
illness and therefore did not challenge the search as an illegal,
pretextual stop.   To establish an ineffective assistance 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that this opinion should not be published.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. 95-30047
-2-
counsel claim a movant must demonstrate that his attorney's
performance was deficient and that the deficient performance
prejudiced his defense.    Strickland v. Washington,
    466 U.S. 668
    ,
687 (1984).   To establish prejudice the movant must show that
counsel's errors were so serious as to render the proceedings
unreliable and fundamentally unfair.    Lockhart v. Fretwell,
    113 S. Ct. 838
    , 844 (1993).
Benjamin argues that his attorney was ineffective for not
arguing in the district court that the officer who made the
initial stop had narcotic interdiction duties but no traffic
enforcement duties.    He cannot demonstrate prejudice.   The
district court found that the arresting officer had a legitimate
basis for stopping the truck and, therefore, it is irrelevant
whether the officer's primary function was narcotics
interdiction.   See United States v. Shabazz,
    993 F.2d 431
    , 435
n.3 (5th Cir. 1993).
Benjamin has failed to raise or brief the claims that
counsel was ineffective for failing to request a severance or
cautionary instruction and for failing to present mitigating
evidence at sentencing.    Therefore, they are considered
abandoned.    See Evans v. City of Marlin, Tex.,
    986 F.2d 104
    , 106
n.1 (5th Cir. 1993).
Benjamin also argues that he was denied due process because
the district court denied his motion before he filed his timely
response to the Government's answer.    On appeal Benjamin argues
only that his attorney failed to present the pretextual stop
issue, but Benjamin cannot establish Strickland prejudice.
No. 95-30047
-3-
Nothing in Benjamin's response to the Government's answer would
alter the result, see Smith v. Collins,
    964 F.2d 483
    , 485 (5th
Cir. 1992), and any error in denying the motion before Benjamin
had an opportunity to respond was harmless.
Appeal DISMISSED.