UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40728
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MILLARD DEAN LOFTIS,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(2:92-CR-9)
May 16, 1997
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Millard Dean Loftis (“Loftis”) appeals the district court’s
denial of his 28 U.S.C. § 2255 motion. On appeal, Loftis asserts
that his indictment was insufficient, that his counsel was
ineffective for failing to appeal the district court’s admission of
*
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this opinion should not be published and is not precedent except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.
the length of his prior sentence, that his trial counsel was
ineffective for not challenging a search warrant of his home for
“staleness” of information, that he was denied his right to testify
in his own behalf, and that the district court should have treated
his untimely objections to the magistrate judge’s report on
Loftis’s § 2255 motion as a Fed. R. Civ. P. 59(e) motion. For the
following reasons, we affirm the district court’s denial of the §
2255 motion.
After reviewing the record and considering Loftis’s claims and
the parties’ arguments, we find no merit in Loftis’s contentions.
Under any standard of review, the indictment adequately stated the
essential elements of Loftis’s offense under 28 U.S.C. § 5861(d)
and was sufficient. Regarding the introduction of the length of
Loftis’s prior sentence, he has made an insufficient showing of
prejudice and we thus reject his claim. See United States v.
Fuller, 769 F.2d 1095, 1098 (5th Cir. 1985). We likewise reject
Loftis’s assertion of error in relation to the issuance of a search
warrant for his home. See United States v. McKeever, 5 F.3d 863,
866 (5th Cir. 1993). Loftis also claims that his counsel prevented
him from testifying, in violation of his constitutional right to
testify, and we review this claim for plain error. See Highlands
Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 27 F.3d 1027,
1031-32 (5th Cir. 1994). The record does not present evidence to
support Loftis’s claim. Given the overwhelming evidence supporting
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his convictions, there is no suggestion that the alleged prevention
of Loftis’s testifying presented the necessary prejudice, or
serious effect on the fairness or integrity of the proceedings,
that is required to justify a finding of plain error. See United
States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en banc).
Loftis’s last assertion of error also fails. Loftis did not
demonstrate that the district court abused its discretion in not
construing Loftis’s late objections as a Rule 59(e) motion nor did
he demonstrate any resulting prejudice. In addition, his attempted
presentation to the district court should have been accomplished
through a motion for leave to file a second § 2255 motion. See
Southern Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606,
611-12 (5th Cir. 1993).
AFFIRMED.
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