United States v. Rowe ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 95-60748 & 95-60750
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILMER O. ROWE, Jr.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
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June 13, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Wilmer Rowe, #245-23-077, appeals the district court’s denial
of his joint motion to vacate, set aside, or correct his sentences
pursuant to 28 U.S.C. § 2255. This court need not consider the
issues whether the Government breached the Florida plea agreement,
whether the district court calculated the applicable restitution
amount improperly, and whether the district court erred by entering
a restitution order without finding that Rowe had the ability to
pay restitution because these issues were decided on Rowe’s direct
1
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that this opinion should not be published and is not precedent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.
Nos. 95-60748 & 95-60750
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criminal appeal. See United States v. Santiago, 993 F.2d 504, 506
& n.4 (5th Cir. 1993). Rowe’s allegations that the district court
erred by denying his § 2255 motion because the Government committed
prosecutorial misconduct, because the Government failed to disclose
material terms of the plea agreement at sentencing, and because he
was denied a fair sentencing due to alleged deliberate false
testimony of witnesses Fellabaum and Fayard are not within the
scope of § 2255 because they are nonconstitutional issues that
could have been raised on direct appeal. See United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992); United States v. Capua,
656 F.2d 1033, 1037 (5th Cir. 1981). Rowe’s allegations that he
was denied effective assistance of counsel do not support relief
because the allegations are conclusional. See Lincecum v. Collins,
958 F.2d 1271, 1279-80 (5th Cir.), cert. denied, 506 U.S. 957(1992).
AFFIRMED.