IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20038
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL RATHBURN,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. CA-95-4578
- - - - - - - - - -
February 21, 1997
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
In this appeal from the district court’s order denying his
motion for relief under 28 U.S.C. § 2255, Michael Rathburn
contends that his criminal conviction violated double jeopardy
because it was preceded by a civil forfeiture pursuant to 21
U.S.C. § 881 (a)(7). A recent opinion by the United States
Supreme Court has rendered this issue frivolous. United States
v. Ursery, 116 S. Ct. 2135, 2147-49 (1996).
*
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that this opinion should not be published and is not precedent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.
No. 96-20038
- 2 -
Rathburn argues for the first time on appeal that the civil
forfeiture violated the Excessive Fines Clause of the Eighth
Amendment. Even assuming that this claim properly was raised in
the district court, it is not cognizable in this § 2255
proceeding. See United States v. Segler, 37 F.3d 1131, 1136-37
(5th Cir. 1994).
Because the appeal is frivolous, it is DISMISSED. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir.
R. 42.2. To the extent that a certificate of appealability (COA)
is required, we construe Rathburn’s notice of appeal as an
application for COA and DENY the motion.
APPEAL DISMISSED.