IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40671
Summary Calendar
UNITED STATES
Plaintiff-Appellee,
versus
LUIS GONZALEZ
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(1:95-CV-822)
October 16, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Luis Gonzalez, federal prisoner no. 04434-078, appeals the
district court’s denial of his 28 U.S.C. § 2255 motion to vacate,
set aside, or correct sentence. Gonzalez has failed to address the
issue of whether the magistrate judge’s order denying his post-
judgment motion for reconsideration, which was never adopted by the
district court, is appealable. Gonzalez has abandoned any argument
relating to the correctness of the post-judgment order. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Thus, this
*
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 R. 47.5, the court has determined that this opinion should not be published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.
appeal is effective as to the district court’s initial order
denying § 2255 relief.
Gonzalez has shown neither cause nor prejudice resulting from
failure to raise arguments regarding sufficiency of the evidence
and “guilt by association” on direct appeal, and he is thereby
procedurally barred from raising these issues in a § 2255 claim.
See United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991)(en
banc). Gonzalez has not shown that counsel was ineffective for
failing to question a witness regarding whether Gonzalez stated
that he took responsibility for the vehicle and its contents. See
Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)(“a conscious
and informed decision on trial strategy cannot be the basis for
constitutionally ineffective assistance of counsel unless it is so
ill chosen that it permeates the entire trial with obvious
unfairness”). The district court did not err by failing to hold an
evidentiary hearing. See United States v. Drummond, 910 F.2d 284,
285 (5th Cir. 1990).
The district court did not commit plain error, when reviewing
Gonzalez’s § 2255 motion, by not finding that the sentencing court
committed plain error when calculating his sentence. See United
States v. Vaughn, 955 F.2d 367 (5th Cir. 1992). Finally, the
district court did not commit plain error in failing to find that
Gonzalez was deprived effective assistance of counsel at
sentencing. See United States v. Smith, 915 F.2d 959, 963 (5th
Cir. 1990).
AFFIRMED.
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