UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-60034
(Summary Calendar)
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LEVESTER HICKMAN,
Petitioner-Appellant,
versus
STATE OF MISSISSIPPI; MICHAEL C MOORE, State
Attorney General,
Respondents-Appellees.
Appeal from the United States District Court
For the Southern District of Mississippi
(4:96-CV-92-LN)
August 12, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Levester Hickman, a Mississippi prisoner proceeding pro se,
appeals the district court’s denial of his petition for writ of
habeas corpus. We affirm.
I
*
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that this opinion should not be published and is not precedent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.
At approximately one o’clock in the morning on June 27, 1992,
noises in her house in Neshoba County, Mississippi, awakened Polly
Brumfield. Before Brumfield could complete a 911 telephone call,
Hickman ran across her bed and knocked the phone out of her hand.
Hickman threw Brumfield on the bed, held a knife to her throat, and
told her that he intended to assault her sexually.
In an effort to stall for time, Brumfield spoke to Hickman
about troubles with his girlfriend, offered Hickman a root beer,
went to the bathroom, and requested a cigarette. At one point,
Brumfield attempted to escape through the front door, but Hickman
caught her in the living room. He threw her to the floor,
restrained her, and told her that he would kill her if she tried to
escape again.
Hickman then attempted sexual intercourse with Brumfield.
After his attempt failed, he performed various sexual acts on her.
After approximately thirty minutes, Hickman fell asleep next to
Brumfield. Brumfield then escaped to a neighbor’s house.
Officer Donnie Atkins arrived at the neighbor’s house, heard
Brumfield’s version of the events, and went to Brumfield’s
residence. Officer Atkins found Hickman asleep on the floor in his
underwear. Officer Atkins arrested Hickman, handcuffed him, and
placed him in the patrol car. Officer Atkins then returned to the
Brumfield residence to continue his investigation. When he
returned to his patrol car, Hickman had escaped. Police recaptured
Hickman later the same day. In a statement given that day,
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Hickman’s account of the events prior to his arrest substantially
coincided with Brumfield’s account.
A Neshoba county grand jury indicted Hickman in a multiple
count indictment on July 9, 1992; trial commenced on July 14, 1992.
Hickman admitted at trial to breaking into Brumfield’s residence.
He claimed, however, that he entered Brumfield’s house to ask her
to kill him. He admitted to touching her, but denied that he
attempted to rape her. He also denied threatening Brumfield or
physically restraining her.
The jury convicted Hickman of burglary of an inhabited
dwelling, attempted rape, sexual battery and escape. The trial
court sentenced Hickman to eighteen years for sexual battery,
twelve consecutive years for burglary of an inhabited dwelling,
five concurrent years for attempted rape, and one concurrent year
for felonious escape. A Mississippi appellate court affirmed
Hickman’s conviction and sentence on direct appeal.
On July 11, 1996, Hickman filed a request for federal habeas
corpus relief pursuant to 28 U.S.C. § 2254.1 A magistrate judge
1
We find no indication that Hickman filed a petition for
habeas relief in Mississippi state court. In its district court
answer to Hickman’s federal habeas petition, the state asserts that
Hickman exhausted his state remedies with respect to his
ineffective assistance of counsel claim and “that any further
return to state courts on this issue would be futile.” Thus, the
state has expressly waived the exhaustion requirement. See 28
U.S.C. § 2254(b)(3), as amended by Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(1996) (“A State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement
unless the State, through counsel, expressly waives the
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recommended dismissal of Hickman’s petition with prejudice. The
district court adopted the magistrate judge’s recommendation,
denying Hickman’s petition for writ of habeas corpus and dismissing
his petition with prejudice. The district court granted Hickman a
certificate of appealability (“COA”) on the issues of whether
Hickman’s trial counsel and appellate counsel rendered ineffective
assistance. Hickman appeals.
II
As a threshold matter, we must determine the issues we will
consider. Hickman raises on appeal the two issues for which the
district court granted a COA, as well as several other issues.
Specifically, he alleges violation of his rights under the double
jeopardy clause and under Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1962). He also asserts denial of a
fair trial because the jury did not include any minorities and
contends that the indictment contained an improper escape charge.
Hickman did not raise these latter four issues in his original
habeas petition in district court. Therefore, we will not consider
requirement.”). Moreover, Hickman’s apparent failure to exhaust
state remedies does not bar our consideration of the merits of his
federal habeas petition. “An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of
the State.” 28 U.S.C. § 2254(b)(2), as amended by Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996).
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them on appeal. See Johnson v. Puckett, 930 F.2d 445, 448 (5th
Cir.) (“We have repeatedly held that a contention not raised by a
habeas petitioner in the district court cannot be considered for
the first time on appeal from that court’s denial of habeas
relief.”), cert. denied, 502 U.S. 890, 112 S. Ct. 252, 116 L. Ed.
2d 206 (1991); United States v. Smith, 915 F.2d 959, 964 (5th Cir.
1990) (per curiam) (“If a defendant in habeas proceedings did not
raise his claims before the district court, we do not consider them
on appeal.”).
Thus, we turn to Hickman’s ineffective assistance of counsel
claims. First, he contends that his trial counsel’s performance
was deficient because the attorney failed to use a Choctaw
interpreter when interviewing Hickman, failed to object to the
multiple count indictment, failed to secure affordable bail, and
failed to object to the jury composition. He also appears to argue
that because his trial counsel was later disbarred for failing to
file appellate briefs in several cases (including Hickman’s), his
counsel’s performance at trial in Hickman’s case was necessarily
ineffective.2
To establish ineffective assistance of counsel, Hickman must
demonstrate both deficient performance by his trial counsel and
prejudice resulting from that deficiency. Strickland v.
2
The court appointed new counsel to represent Hickman on
appeal.
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Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984). To show that his trial counsel’s performance was
deficient, Hickman must show that his attorney “made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id., 104 S. Ct.
at 2064. To demonstrate prejudice from his trial counsel’s
deficient performance, Hickman must show that his attorney’s errors
“were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id., 104 S. Ct. at 2064. Failure
to establish either prong defeats the claim. Id., 104 S. Ct. at
2064.
Even assuming deficient performance by his trial counsel,
Hickman cannot satisfy the exacting Strickland standard because he
cannot demonstrate prejudice as a result of his attorney’s
performance. None of the errors Hickman alleges demonstrates “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have
been different,” id. at 694, 104 S. Ct. at 2068, or that the result
of the trial is unreliable. Id. at 687, 104 S. Ct. at 2064. The
evidence against Hickman was extensive, and included his own trial
testimony that he used a ladder to enter Brumfield’s home, that he
attempted intercourse with her, and that he performed a sex act on
her. In addition, Brumfield testified to the events; her neighbor
and a police officer corroborated her testimony. Nor does the fact
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that Hickman’s trial counsel was later disbarred, by itself,
demonstrate that the outcome of Hickman’s trial would have been
different but for counsel’s alleged errors. See id. at 691, 104 S.
Ct. at 2067 (“An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.”).
In sum, Hickman has not established that his trial counsel rendered
him constitutionally defective assistance.3
Hickman states without elaboration that his appellate counsel
denied him effective assistance by failing to obtain “enough
evidence” in Hickman’s favor. This bare allegation does not
preserve this claim for appeal. See Price v. Digital Equip. Corp.,
846 F.2d 1026, 1028 (5th Cir. 1988) (“Although we liberally
construe the briefs of pro se appellants, we also require that
3
We note with respect to Hickman’s claim that his trial
attorney failed to object to the jury composition that Hickman does
not argue that the prosecutor improperly excluded minorities from
the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.
Ct. 1712, 90 L. Ed. 2d 69 (1986). Rather, he appears to claim that
the jury was not fairly representative of the community because it
allegedly did not contain African-Americans and Native Americans.
However, he provides no argument regarding the composition of the
venire panel, the proportion of African-Americans and Native
Americans in the community or the jury selection procedure used by
the state court. See Duren v. Missouri, 439 U.S. 357, 364, 99 S.
Ct. 664, 668, 58 L. Ed. 2d 579 (1979) (“In order to establish a
prima facie violation of the fair-cross-section requirement, the
defendant must show (1) that the group alleged to be excluded is a
‘distinctive’ group in the community; (2) that the representation
of this group in venires from which juries are selected is not fair
and reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.”).
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arguments must be briefed to be preserved.”) (citations omitted);
Fed. R. App. P. 28(a)(6) (“The argument must contain the
contentions of the appellant on the issues presented, and the
reasons therefor, with citations to the authorities, statutes, and
parts of the record relied on.”); cf. Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993) (holding that pro se appellant abandons
arguments by failing to argue them in body of brief).
Hickman also appears to assert that his appellate counsel did
not adequately argue his ineffective assistance of trial counsel
claim on direct appeal because appellate counsel did not mention
that Hickman’s trial attorney had sought removal from the case
prior to trial. Review of the brief submitted by appellate counsel
on direct appeal, however, reveals that counsel specifically argued
that Hickman received constitutionally defective assistance from
his trial attorney, noting examples of alleged ineffective
assistance. The fact that counsel did not specifically note
Hickman’s trial attorney’s request for removal prior to trial does
not warrant a finding of ineffective assistance of appellate
counsel. See Sharp v. Puckett, 930 F.2d 450, 452 (5th Cir. 1991)
(stating that counsel is not ineffective by failing to raise on
appeal issues requested by defendant or by failing to raise “every
possible point on appeal”).
Hence, for the foregoing reasons, we AFFIRM the district
court’s denial of Hickman’s petition for habeas relief. We GRANT
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Hickman’s motion to file his reply brief out of time. We DENY
Hickman’s motion “to have plaintiff examined of individual
comprehensive,” motion for an appeal bond, and motion for transfer
to another correctional facility.
AFFIRMED. MOTION TO FILE REPLY BRIEF OUT OF TIME GRANTED.
ALL OTHER PENDING MOTIONS DENIED.
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