IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50708
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BYRON LAMONTE MCCUTCHEON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-95-CA-228
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February 23, 1998
Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Byron Lamonte McCutcheon, federal prisoner # 60246-080,
requests permission to proceed in forma pauperis (IFP) on appeal
from the district court’s judgment dismissing his 28 U.S.C.
§ 2255 motion. McCutcheon contends that counsel on direct appeal
provided ineffective assistance by failing to challenge the
district court’s estimate of the drug quantity attributable to
McCutcheon, the district court’s alleged failure to make findings
in accordance with Fed. R. Crim. P. 32, and the district court’s
*
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that this opinion should not be published and is not precedent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.
No. 96-50708
-2-
determination of McCutcheon’s sentence by using crack cocaine
rather than powder cocaine. McCutcheon also contends that the
district court erred in determining that his ineffective
assistance claims were procedurally barred and in dismissing his
§ 2255 motion without conducting an evidentiary hearing.
We have reviewed the record, the district court's thorough
opinion, and McCutcheon’s brief and find no nonfrivolous issues
for appeal. See McCutcheon v. United States, No. W-95-Ca-228
(W.D. Tex. Jul. 2, 1996). McCutcheon abandoned any challenge to
his claim that his conviction was barred by double jeopardy and
to the district court’s determination that his sentencing issues
were procedurally barred by failing to assert and brief the
issues in this court. See Hobbs v. Blackburn, 752 F.2d 1079,
1083 (5th Cir. 1985)(errors not raised and not briefed on appeal
are abandoned).
As an appeal would have no merit, the motion for leave to
proceed IFP is DENIED. See Carson v. Polley, 689 F.2d 562, 586
(5th Cir. 1982). The appeal is DISMISSED. See 5th Cir. R. 42.2.
IFP DENIED. APPEAL DISMISSED.