IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-00470
IN RE: TONY EPPS,
Movant.
---------------------
Motion for an order authorizing
the United States District Court for the Southern
District of Texas to consider
a successive habeas corpus application
----------------------
December 15, 1997
Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Tony Epps, Texas prisoner # 450886, has moved this court
for an order authorizing him to file a successive 28 U.S.C.
§ 2254 habeas corpus application in the district court. Epps
asserts that his counsel was ineffective because he erroneously
informed him that he could receive probation, insisted that he
waive his right to jury trial, and caused him to reject the
state’s offer of a 45-year sentence. He also contends that the
trial court abused its discretion at sentencing by admitting
*
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that this opinion should not be published and is not precedent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. 97-00470
- 2 -
evidence that proved elements not charged in the indictment, thus
allowing proof of an essential element of the crime on an
alternative basis, which he admits is permitted by statute.
Epps does not make a prima facie showing that his successive
§ 2254 habeas corpus application is based on newly discovered
evidence or on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable. See 28 U.S.C. § 2254(b)(2). Therefore,
Epps’ motion for permission to file a successive § 2254
application is DENIED.