UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30004
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERBERT LEE HUGHES,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(CV-93-1457)
September 3, 1996
Before POLITZ, Chief Judge, DAVIS and DENNIS, Circuit Judges.
POLITZ, Chief Judge:*
Herbert Hughes appeals the rejection of his 28 U.S.C. § 2255 motion for
relief from his conviction and sentence for possession with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2;
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule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.
carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c); and for being a convicted felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Proceeding pro se and in forma pauperis Hughes claims a double jeopardy
violation because of a subsequent civil forfeiture; seeks the vacating of his
sentences because of ineffective assistance of counsel; error in the sentencing
calculations; a wrongful charge of carrying a weapon in relation to a drug
transaction; an erroneous consideration of a prior conviction for which a pardon
had issued; and a selective prosecution. Hughes sought to supplement the record
by attaching certain exhibits to his brief; the government moves to strike same.
The double jeopardy complaint is foreclosed by the recent Supreme Court
decision in United States v. Ursery.1 The complaint under section 924(c),
however, has merit. The government candidly concedes that the sentence imposed
under Count Two should be vacated and the matter should be remanded for
consideration under the intervening decision in Bailey v. United States.2 This
conviction is, accordingly, vacated; on remand the district court must determine
whether Hughes was “carrying” the weapon under section 924(c) as explicated by
1
1996 WL 340815.
2
_____ U.S. _____, 116 S.Ct. 501 (1995).
2
the Supreme Court.
Hughes advances several challenges to the district court’s application of the
sentencing guidelines. These issues are not cognizable in a section 2255
proceeding but should have been raised on direct appeal.3
Nor do we find any merit in Hughes’ claim of selective prosecution. An
essential requirement of such a challenge is a showing that the “prosecution has
been invidious or in bad faith in that it rests upon such impermissible
considerations as race, religion, or the desire to prevent his exercise of
constitutional rights.”4 No such allegations were made; no such proof was
advanced.
Nor do we find any merit in the claims of ineffective assistance of counsel.
Hughes must affirmatively prove prejudice. In light of today’s holdings on his
several challenges this cannot be done herein.
Finally, in light of today’s disposition, the government’s motion to strike
certain documents from the record is moot and it is, accordingly, denied.
The judgment appealed is AFFIRMED IN PART, VACATED IN PART, and
3
See United States v. Vaughan, 955 F.2d 367 (5th Cir. 1992); United States v. Capua,
656 F.2d 1033 (5th Cir. 1981).
4
United States v. Garth, 773 F.2d 1469, 1476 (5th Cir. 1985), cert. denied, 476 U.S.
1140 (1986).
3
REMANDED.
4