United States v. Lucious ( 1996 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-21033
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAMBERT LUCIOUS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(CR H-92-141-01)
November 26, 1996
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Lambert Lucious appeals the district court’s denial of his
petition for writ of habeas corpus. We affirm.
A jury convicted Lucious of conspiracy to import and possess
more than one kilogram of heroin with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(i), 952, 960, and
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
963. The judge sentenced him to serve two concurrent terms of 188
months followed by concurrent five-year terms of supervised
release. Lucious appealed his conviction to this court, claiming
that it was based on impermissible extrinsic act evidence and
hearsay. We detailed the facts of the criminal case, and our
conclusions that Lucious’s claims were meritless, in an unpublished
per curiam opinion styled United States v. Lucious, No. 93-2205
(5th Cir. April 4, 1994).
Lucious then filed this petition for writ of habeas corpus,
making four arguments that he did not raise on direct appeal. The
district court granted the government’s motion for summary
judgment, from which Lucious now appeals. Lucious argues for the
first time on habeas appeal (1) that his conviction was obtained by
testimony the prosecution knew or should have known was false; (2)
that the district court erred in denying his motion for continuance
so his wife could testify; (3) that the prosecutor suppressed
material, favorable evidence in violation of Brady v. Maryland; and
(4) that his counsel was ineffective because he failed to conduct
an adequate investigation and failed to impeach a prosecution
witness.
A defendant who has been convicted and has exhausted or waived
his right to appeal is presumed to have been “fairly and finally
convicted,” United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.
1991) (en banc), cert. denied, 502 U.S. 1076, 112 S. Ct. 978, 117
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L. Ed. 2d 141 (1992), and a collateral challenge may not serve as
an appeal. United States v. Frady, 456 U.S. 152, 168, 102 S. Ct.
1584, 1594-95, 71 L. Ed. 2d 816, reh’g denied, 456 U.S. 1001, 102
S. Ct. 2287, 73 L. Ed. 2d 1296 (1982); Shaid, 937 F.2d at 231.
Therefore, a defendant who raises a constitutional or
jurisdictional issue for the first time on a petition for habeas
corpus must show both cause for the default and actual prejudice
resulting from the error. Frady, 456 U.S. at 168; Shaid, 937 F.2d
at 232. The only exception to the cause and prejudice standard is
the extraordinary case in which a constitutional violation results
in the conviction of one who is actually innocent. Shaid, 937 F.2d
at 232.
Lucious argues that the ineffectiveness of his counsel, who
was terminally ill with brain cancer, constitutes the “cause” for
his failure to raise these issues on direct appeal. We need not
decide whether his counsel met the guarantees of the Sixth
Amendment or whether the asserted shortcomings of his counsel were
sufficient cause for failing to raise his claims on direct appeal,
however, because Lucious has failed to show that prejudice has been
established.
Lucious first contends that his conviction was obtained by
testimony the prosecution knew or should have known was false.
Specifically, Lucious contests the identity of Edwin Williams, a
key prosecution witness, who Lucious claims is actually a drug
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smuggler named Boniface Okechukwu Nwisu. At trial, Lucious’s
counsel cross-examined Williams about his identity, asking him
specifically whether or not he was Nwisu, and counsel introduced
evidence at trial to impeach Williams’s allegedly false testimony.
In addition, Lucious’s attorney used evidence about Williams’s
identity in closing remarks. Lucious has failed to show why the
witness’s name is at all material to Lucious’s innocence or guilt
for drug smuggling. Therefore, he fails to show sufficient
prejudice to justify a collateral challenge under Shaid.
Lucious argues that the district court denied him due process,
the effective assistance of counsel, and his right to compulsory
process by denying Lucious’s motion to continue his trial so that
his wife could testify on his behalf at a later date. According to
Lucious, his wife would testify that she did not see Lucious and
his alleged coconspirators ingesting drug-filled balloons in the
couple’s home in Lagos, Nigeria. Lucious did not challenge the
denial of his motion for continuance on direct appeal, and he has
not shown how he was prejudiced by his wife’s failure to testify.
Taken at face value, Lucious’s version of what his wife would say
under oath is not inconsistent with the testimony at trial, since
the conspirators could easily have ingested the drugs outside of
her presence. His claim that the lack of his wife’s testimony
rises to a constitutional violation is therefore insufficient to
show prejudice.
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Lucious also claims that the prosecution withheld exculpatory
evidence from him in violation of Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). As examples of such
evidence, Lucious cites Williams’s real name, fingerprints, and
immigration records; the statement that coconspirator Anthony
Omagbemi allegedly gave to police on arrest; and the alleged
statement of coconspirator Charles Igbokwe on arrest. The
defense’s cross examination at trial reflects that Lucious was in
possession of some of the evidence allegedly suppressed. Brady
does not require the disclosure of evidence that is available to
the defense. United States v. Brown, 628 F.2d 471, 473 (5th Cir.),
reh’g denied, 633 F.2d 582 (5th Cir. 1980). As to the rest of the
evidence, Lucious has completely failed to demonstrate that any
such evidence would have been favorable to his defense. Thus the
evidence satisfies neither the favorableness requirement of Brady
nor the prejudice requirement of Shaid.
Lucious raises an ineffective assistance of counsel claim,
asserting that his terminally ill lawyer failed to interview
Omagbemi, Williams, and Igbokwe; failed to investigate Lucious’s
records for an alibi; and failed to impeach Williams at trial.
Lucious does not assert how performance of any of these tasks by
counsel would be material to the outcome of the trial, and thus he
has failed to show prejudice under Shaid.
The only exception to the “cause and prejudice” requirements
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of Shaid is where the petitioner can show that a constitutional
violation probably resulted in the conviction of an innocent
person. United States v. Flores, 981 F.2d 231, 236 (5th Cir.
1993). To show “actual innocence,” a petitioner must establish
that “there is a fair probability that, in light of all the
evidence, a reasonable trier could not find all the elements
necessary to convict the defendant of that particular crime.”
Johnson v. Hargett, 978 F.2d 855, 859 (5th Cir. 1992), cert.
denied, 507 U.S. 1007, 113 S. Ct. 1652, 123 L. Ed. 2d 272 (1993).
Lucious has shown neither a constitutional violation nor actual
innocence. In light of the detailed testimony of the
coconspirators concerning the drug smuggling operation, it is clear
that a reasonable trier could find each element necessary to
convict Lucious.
Having failed to raise any of the above challenges on direct
appeal, Lucious had to show both cause and actual prejudice in his
trial. Lucious has not shown how any of the four alleged errors
was prejudicial, and we therefore hold that the district court
correctly declined to overturn his conviction under § 2255.1
1
We note that Lucious’s appeal was pending when the President signed
into law the Antiterrorism and Effective Death Penalty Reform Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Congress did not specify
an effective date for § 102(c)(3), and this court has not decided whether amended
§ 2253 applies to pending § 2255 appeals. We decline to do so here. Because the
petitioner is not entitled to relief under the less restrictive standards of
§ 2253 before amendment, the question of whether we deny relief under the more
or less restrictive standard is moot. See Boyle v. Johnson, 93 F.3d 180, 188-89
(5th Cir. 1996) (declining to decide retroactivity of AEDPA to pending appeal
because prisoner made insufficient showing under less restrictive standards).
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Accordingly, we AFFIRM.
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