UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20071
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM GEORGE LAKE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-5252/CR No. H-93-50
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August 7, 1996
Before JONES, DEMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
William George Lake, # 60517-079, appeals the summary
dismissal of his 28 U.S.C. § 2255 motion to vacate his sentences
for being an alien in possession of a firearm and being a convicted
felon in possession of a firearm. Lake argues his conviction was
obtained in violation of his Fourth, Fifth, and Sixth Amendmenbt
*
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should not be published and is not precedent except under the limited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.
rights. We have reviewed the record and the briefs and find no
merit in Lake’s motion.
Lake’s claims that the search of his house was unlawful
and that the statement he gave at the Orange County jail was
involuntary were waived by his unconditional plea of guilty. “When
a criminal defendant has solemnly admitted in open court that he is
in fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the
guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973).
As to Lake’s Sixth Amendment claims, to obtain § 2255
relief based on ineffective assistance of counsel, a defendant must
show not only that his attorney’s performance was deficient, but
that the deficiencies prejudiced the defense. United States v.
Smith, 915 F.2d 959, 963 (5th Cir. 1990). Nugent was not deficient
for failing to object to the propriety of the search; such an
objection would have proven futile since, contrary to Lake’s
assertions, the record demonstrates that the search was authorized
by a valid warrant. Even if Lake had shown that Kimborough’s
performance was deficient for allowing the interview with the ATGF
agent and that Nugent’s performance was deficient for not pursuing
the motion to suppress the resulting statement, Lake cannot
demonstrate prejudice because, again, even without the statement,
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there was sufficient evidence of possession of firearms resulting
from the search of the house to convict Lake on the alien-in-
possession and the felon-in-possession counts, while the machine
gun possession charge, apparently the main topic of the statement,
was dismissed. Lake cannot demonstrate a reasonable probability
that, but for Kimbrough’s alleged error in allowing the interview
and Nugent’s alleged errors in failing to challenge the validity of
the statement, he would have not pleaded guilty, but would have
gone to trial. See Hill v. Lockhart, 474 U.S. 52, 57-58 (1985).
Lake’s other allegations concerning his attorneys’ actions are
conclusional allegations which do not merit habeas relief. United
States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993).
Lake argues finally that the district court should have
granted him an evidentiary hearing. The opportunity for an
evidentiary hearing in a habeas corpus proceeding is mandatory only
where there is a factual dispute which, if resolved in the
petitioner’s favor, would entitle the petition to relief. East v.
Scott, 55 F.3d 996, 1000, 1002 (1995). Lake has shown no such
genuine issue of fact.
Lake’s motion for leave to file an out-of-time reply
brief is GRANTED. Because Lake’s appeal lacks merit, the interests
of justice do not require the appointment of counsel. The motion
for appointment of counsel is DENIED. The judgment of the district
court is AFFIRMED.
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