Newton v. West

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50522
Summary Calendar
CARLOS BERNARD NEWTON,
Petitioner-Appellant,
versus
TIM WEST, Asst. Warden; STATE OF TEXAS; GARY L.
JOHNSON, DIR., TEXAS DEP’T OF CRIM. JUSTICE, INST’L DIV.,
Respondents-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-95-CV-278
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March 13, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
Carlos Bernard Newton (#664876), a state prisoner, has
appealed the district court’s judgment dismissing his petition
for a writ of habeas corpus raising several ineffective-
assistance-of-counsel claims. See Strickland v. Washington, 466
U.S. 668, 687 (1984). Newton contends that his attorney met with
him only once prior to the trial. The state habeas court found
otherwise, and its findings of fact are presumptively correct.
See Marshall v. Lonberger, 459 U.S. 422, 432 (1983).
*
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this opinion should not be published and is not precedent except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.
No. 97-50522
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Newton contends that his attorney erred in failing to
subpoena and call his codefendants as witnesses. The state
habeas court’s finding that Newton’s attorney had determined that
the codefendants would not offer favorable testimony is
presumptively correct. Id. at 432. Newton contends that an
“affidavit” signed by codefendant Hernandez proves that Hernandez
would have “cleared” Newton if he had been subpoenaed to testify
and that Newton had never possessed drugs or drug paraphernalia.
Hernandez’ statement, if true, does not establish that counsel
was professionally unreasonable in relying on the representations
of Hernandez’ attorney regarding the favorability of Hernandez’
testimony. See Black v. Collins, 962 F.2d 394, 401 (5th Cir.
1992). A hearing was not required because the record before the
court was adequate for disposition of the case. Joseph v.
Butler, 838 F.2d 786, 788 (5th Cir. 1988).
Newton contends that his attorney failed to seek pretrial
discovery and suppression of illegally obtained evidence. These
claims are not supported by the record.
Newton has failed to show that he was prejudiced by his
attorney’s failure to lodge an objection under Batson v.
Kentucky, 476 U.S. 79 (1986).
Because Newton admitted, during the guilt/innocence phase of
the trial, that the facts underlying the enhancement counts of
the indictment were true, Newton cannot show that his attorney
No. 97-50522
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was professionally unreasonable in advising Newton to plead true
to those counts during the penalty phase of the trial.
Newton contends that counsel failed to subpoena alibi
witnesses and failed to move for a new trial. Newton did not
have an alibi defense, and his attorney did move for a new trial.
Newton contends that his attorney was ineffective in failing
to prove his innocence through the use of blood and DNA testing
of a syringe. Limitations on counsel’s investigation are
reasonable to the extent that reasonable professional judgement
supported such limitations. Black, 962 F.2d at 401. The
arresting officer testified that he saw Newton injecting himself
with narcotics. There was no reason to believe that Newton’s
blood and DNA would not be found in the syringe and their absence
would not necessarily exculpate Newton. This argument fails both
prongs of the Strickland test.
Newton raises a variety of issues for the first time in his
reply brief, including his contention that the arresting officer
was motivated against him by racial animus and that evidence
regarding the actions of another officer was not disclosed to the
defense, in violation of the rule in Brady v. Maryland, 373 U.S.
83 (1963). Because these issues are raised for the first time in
Newton’s reply brief, we do not consider them. Knighten v.
Commissioner, 702 F.2d 59, 60 & n. 1 (5th Cir. 1983).
Newton contends in passing that the district court erred in
failing to appoint counsel. Other than to argue that his case is
No. 97-50522
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complex, Newton does not suggest why the interests of justice
would have been served by appointment of counsel. See Schwander
v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).
The district court’s judgment is AFFIRMED.