United States v. Tolliver

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11064
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIN TOLLIVER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:95-CV-835-E
USDC No. 4:96-CV-099-E
USDC No. 4:88-CR-057-E
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December 3, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Alvin Tolliver seeks a certificate of appealability (COA) to
appeal from the partial denial of three consolidated 28 U.S.C.
§ 2255 motions in which Tolliver challenged his conviction and
sentence for possession with intent to distribute heroin and
maintenance of a place for the manufacture of narcotics.**
*
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that this opinion should not be published and is not precedent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.
**
The district court granted relief on Tolliver’s
contention that a conviction for use of a firearm in relation to
a drug-trafficking crime violated Bailey v. United States, 116 S.
No. 96-11064
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Tolliver’s § 2255 motions were filed before the effective date of
the Antiterrorism and Effective Death Penalty Act (AEDPA); he
therefore does not need a COA to proceed on appeal. His COA
motion therefore is DENIED as unnecessary.
Tolliver argues that trial counsel merely feigned
representation of him because counsel was intimidated by the
prosecutor’s implicit threat to name counsel as a conspirator and
therefore advised Tolliver to plead guilty, failed to move for
suppression of evidence, and failed to present evidence on
Tolliver’s behalf. Tolliver argued in the district court only
that trial counsel advised him to plead guilty and feigned the
defense because of intimidation; he did not argue specifically
that counsel was ineffective for failing to seek suppression of
evidence of failing to present evidence on his behalf.
Tolliver’s general contention that counsel feigned a defense
is conclusional and does not allege any specific prejudice.
Tolliver’s conclusional allegations are insufficient to give rise
to any § 2255 issues. United States v. Pineda, 988 F.2d 22, 23
(5th Cir. 1993). Tolliver’s remaining ineffective-assistance
contentions give rise to factual questions that this court will
not resolve on appeal. Tolliver has not shown plain error
regarding those contentions. Robertson v. Plano City of Texas,
70 F.3d 21, 23 (5th Cir. 1995).
Tolliver contends that the attribution to him of more drugs
Ct. 501 (1995).
No. 96-11064
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than the quantity with which he was arrested violated the Eighth
Amendment. Tolliver could have raised his Eighth Amendment
contention in a direct appeal following resentencing but chose
not to do so. Tolliver is procedurally barred from raising his
Eighth Amendment issue. United States v. Drobny, 955 F.2d 990,
994-95 (5th Cir. 1992).
Tolliver’s appeal is frivolous, Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983), and therefore is dismissed. Counsel
is admonished that he has a duty not to pursue frivolous appeals.
United States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994).
APPEAL DISMISSED. 5TH CIR. R. 42.2.