IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41245
Summary Calendar
MATHEW VARUGHESE,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:96-CV-427
September 25, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Mathew Varughese appeals the denial of his petition for a writ
of habeas corpus. Varughese contends that his counsel was
ineffective for not objecting to: argument made by the State
asking the jury to consider his race as a basis for his conviction,
testimony that his daughter wrote in her diary that he abused her,
and testimony regarding the bad character of Indian men. Varughese
also argues that his counsel was ineffective for failing to
interview the State’s expert or the defense expert about whether
*
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 R. 47.5, the court has determined that this opinion should not be published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.
the burns on his shirt were caused by a “flash fire” and for
failing to offer evidence that his fingers were burned in the fire.
The district court granted Varughese’s motion for certificate
of appealability (COA) concerning whether Varughese’s counsel’s
failure to object to argument made by the state asking the jury to
consider his race as a basis for his conviction prejudiced his
defense. Varughese in his brief to this court raises the
ineffectiveness-of-counsel issue, including matters for which the
district court denied COA. Varughese later submitted a letter to
this court specifically requesting that we consider all five
claimed deficiencies of trial counsel in our resolution of the
ineffective-assistance issue, rather than the single deficiency
certified by the district court.
In this case there is some question as to whether a district
court, using the COA procedure, can divide a claim of ineffective
assistance into subparts for appellate review. There is also some
question as to whether, assuming the issue is divisible, Varughese
properly requested review of the issues that were not granted COA.
See United States v. Kimler, No. 97-20320, 1998 WL 442846, at 1
(5th Cir. Aug. 5, 1998); Lackey v. Johnson, 116 F.3d 149 (5th Cir.
1997). Nevertheless, we need not reach these questions because,
even if we were to consider all claims of ineffective assistance,
we would deny relief because these arguments are without merit. We
have carefully reviewed the record and the briefs, and, essentially
for reasons adopted by the district court concerning this issue, we
2
AFFIRM the district court’s judgment. See Varughese v. Johnson,
No. 4:96-CV-427 (E.D. Tex. Sep. 26, 1997)(unpublished).
AFFIRMED.
3