Durr v. Ward ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30544
Summary Calendar
RICHARD DURR,
Petitioner-Appellant,
versus
KELLY WARD, Warden,
Wade Correctional Center,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Louisiana
(94-CV-431-A)
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November 12, 1999
Before POLITZ, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Richard Durr, Louisiana state prisoner #
89593, appeals the denial of his application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Durr raises the following
arguments on appeal: (1) The jury instructions for reasonable doubt
unconstitutionally lowered the state’s burden of proof at Durr’s
criminal trial; (2) Durr’s attorney rendered ineffective assistance
of counsel because he failed to file a timely motion to sever,
failed to request a bill of particulars, and failed to object to
*
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that this opinion should not be published and is not precedent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.
errors in the record; (3) the conviction was not supported by
sufficient evidence; (4) the trial court imposed an improper
sentence; and (5) Durr was improperly denied bail. Durr also filed
a motion for appointment of counsel on appeal. This motion is
DENIED.
The state trial court’s reasonable doubt instruction was not
unconstitutional. See Victor v. Nebraska, 511 U.S. 1 (1994); Cage
v. Louisiana, 498 U.S. 39 (1990). We have approved a jury
instruction essentially identical to the one given at Durr’s trial.
See Gaston v. Whitley, 67 F.3d 121, 121-22 (5th Cir. 1995).
Durr next asserts that his attorney rendered ineffective
assistance. See Strickland v. Washington, 466 U.S. 668, 687
(1984). Durr attempts to incorporate by reference the arguments
from his habeas petition. See Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993)(holding that a petitioner may not incorporate by
reference arguments in other pleadings). Durr makes conclusional
allegations of deficient performance and prejudice, which are
insufficient to establish constitutionally deficient performance of
counsel. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
The remaining issues asserted by Durr on appeal were
voluntarily abandoned in his amended complaint. As such, they were
not before the district court and are thus raised for the first
time on appeal. We will not consider issues raised for the first
time on appeal. Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999).
2
The district court’s denial of Durr’s habeas petition is
AFFIRMED.
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.
3