IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41116
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARL GAYWIN ACLESE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:96-CV-97
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July 24, 1998
Before DUHE’, EMILIO M. GARZA and DeMOSS, Circuit Judges.
PER CURIAM:*
Karl Gaywin Aclese, inmate # 04913-078, appeals the district
court’s dismissal of his 28 U.S.C. § 2255 motion. Aclese’s
motion for appointment of counsel is DENIED.
Aclese contends that the district court erred in applying
the procedural bar to his claims that the drug quantity for which
he was held accountable was not foreseeable to him and that the
evidence was insufficient to demonstrate a conspiracy. Aclese
asserts that his attorney provided ineffective assistance.
*
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that this opinion should not be published and is not precedent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. 97-41116
-2-
Aclese also asserts that his sentence should not have been
calculated by using the Sentencing Guidelines for crack cocaine.
On direct appeal, we determined that the drug quantity
attributed to Aclese was foreseeable. Aclese may not assert that
issue under § 2255. See United States v. Kalish, 780 F.2d 506,
508 (5th Cir. 1986)(issues determined in a previous appeal are
not considered in § 2255 motions).
We do not consider Aclese’s assertion, raised in his reply
brief, that counsel’s ineffective assistance was cause for his
failure to assert the conspiracy issue on direct appeal. See
Stephens v. C.I.T. Group/Equip. Fin., Inc., 955 F.2d 1023, 1026
(5th Cir. 1992)(we do not consider issues raised for the first
time in a reply brief). Further, the trial record refutes
Aclese’s contention that the evidence was insufficient to prove
that he engaged in a drug conspiracy.
To establish a claim of ineffective assistance of counsel,
Aclese must show that counsel's representation fell below an
objective standard of reasonableness and that there is a
reasonable probability that the results of the proceeding would
have been different except for counsel's unprofessional errors.
See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). An
ineffective-assistance claim may be rejected because of an
insufficient showing of prejudice, without assessing the adequacy
of counsel's performance. United States v. Fuller, 769 F.2d
1095, 1097 (5th Cir. 1985).
No. 97-41116
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The decision to raise certain issues on appeal is a matter
of professional judgment, and appellate counsel need not assert
every nonfrivolous issue on appeal. See Jones v. Barnes, 463
U.S. 745, 750-51 (1983). Aclese has not shown prejudice from
counsel’s admission on appeal that Aclese received the drugs and
for counsel’s alleged failure to notify him of the direct appeal
judgment in a more timely fashion.
Aclese has not shown error, much less plain error, in
conjunction with his claim that his sentence should not have been
calculated based on crack cocaine. We have determined that “for
purposes of the Sentencing Guidelines, `cocaine base’ means
`crack.’” United States v. Brewster, 137 F.3d 853, 857 (5th Cir.
1998).
Aclese has abandoned the issues raised in the district court
that the Government failed to disclose to the jury the bargain it
made with witness Roger Johnson and that his conviction was a
violation of double jeopardy by failing to assert them on appeal.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987)(issues not asserted on appeal are
abandoned).
The decision of the district court is AFFIRMED.
AFFIRMED; MOTION DENIED.