United States v. Lewis

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 26, 2006
Charles R. Fulbruge III
Clerk
No. 03-31135
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JERNARD LEWIS
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CV-3136-N
USDC No. 98-CR-207-13
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Before KING, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Jernard Lewis, federal prisoner # 01166-748, was convicted
by a jury of conspiring to distribute cocaine base and cocaine
hydrochloride and of using and carrying firearms during and in
relation to a drug offense. He appeals the district court’s
denial of relief on his 28 U.S.C. § 2255 motion challenging his
life sentence for the drug offense. Lewis has moved to stay his
appeal pending Supreme Court decisions in two unrelated cases.
Because Mayle v. Felix, 125 S. Ct. 2562 (2005), has been decided,
*
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this opinion should not be published and is not precedent except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. 03-31135
-2-
this motion is DENIED as unnecessary. Lewis’s motion for a stay
pending a decision in Washington v. Recuenco, 110 P.3d 188(Wash.), cert. granted, 126 S. Ct. 478 (2005), is also DENIED.
See United States v. Robinson, 367 F.3d 278, 285-86 (5th Cir.),
cert. denied, 543 U.S. 1005 (2004); cf. Wicker v. McCotter, 798
F.2d 155, 157-58 (5th Cir. 1986).
The district court granted a certificate of appealability
(COA) as to four issues. Lewis moves for a supplemental COA on
his assertion that his enhanced sentence violated Blakely v.
Washington, 542 U.S. 296 (2000). Lewis, however, has not shown
“that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, COA is
DENIED.
Lewis contends that his appellate attorney rendered
ineffective assistance by not raising a claim pursuant to
Apprendi v. New Jersey, 530 U.S. 466 (2000). He has not
established a “reasonable probability” of “a different outcome if
the attorney [had] adequately addressed the issue.” United
States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir. 2001).
Lewis argues that his sentence violated due process under
Apprendi because the jury had not made a finding of the requisite
drug quantity to support his life sentence. He maintains that he
has established cause and prejudice for failing to raise the
claim on direct appeal, allowing him to present it in his § 2255
No. 03-31135
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motion. Because Lewis has not established the ineffectiveness of
appellate counsel, he has not shown cause to overcome the
procedural default. See United States v. Walker, 68 F.3d 931,
934 (5th Cir. 1995).
Lewis asserts that the district court abused its discretion
in denying his motion to amend his § 2255 motion to add a claim
that trial counsel rendered ineffective assistance by not raising
at sentencing a challenge to his life sentence pursuant to Jones
v. United States, 526 U.S. 227 (1999). Even if it is assumed
that the amendment would relate back to the time of Lewis’s
original pleading under FED. R. CIV. P. 15(c)(2), Lewis is not
entitled to relief on this ground. He has not established that
his trial counsel rendered ineffective assistance at sentencing.
See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.
2000); Lucas v. Johnson, 132 F.3d 1069, 1078-79 (5th Cir. 1998).
The judgment of the district court denying Lewis’s § 2255 motion
is AFFIRMED.