IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50349
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO ARRIOLA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-96-CA-315 (SA-93-CR-25-1)
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February 4, 1999
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Jose Antonio Arriola, # 65012-080, appeals the district
court’s judgment denying his 28 U.S.C. § 2255 motion. He has
also filed a motion for appointment of counsel, which is DENIED.
Arriola argues that the district court erred in summarily
dismissing his motion without a hearing and that the case should
be remanded to the district court to afford him the opportunity
to amend and further develop his § 2255 motion.
*
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that this opinion should not be published and is not precedent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. 98-50349
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"A motion brought under 28 U.S.C. § 2255 can be denied
without a hearing only if the motion, files, and records of the
case conclusively show that the prisoner is entitled to no
relief." United States v. Bartholomew, 974 F.2d 39, 41 (5th
Cir. 1992). This court reviews a district court's denial of an
evidentiary hearing for abuse of discretion. Id. A hearing is
unnecessary when petitioner's allegations are not detailed and
specific. United States v. Smith, 915 F.2d 959, 964 (5th Cir.
1990).
Arriola notes that he set forth numerous allegations of
ineffective assistance of counsel in his motion, but he declines
to discuss the merits of these allegations. Arriola has not
briefed any arguments challenging the district court’s
conclusions that none of the alleged instances of ineffective
assistance involved attorney error or were prejudicial. He does
not brief his claims of ineffective assistance so as to
demonstrate why the district court erred in concluding that the
record conclusively showed that he was entitled to no relief or
why an evidentiary hearing was necessary. Arriola’s appellate
brief does not provide record citations to the parts of the
record which he alleges support his claims.
The Federal Rules of Appellate Procedure require the parties
to provide references to the record to support statements of
fact. Fed. R. App. P. 28(a)(4); 5th Cir. R. 28.2.3. Although
this court liberally construes the briefs of pro se litigants,
pro se parties must still brief the issues and comply with the
No. 98-50349
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standards of Rule 28 of the Federal Rules of Appellate Procedure.
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
Additionally, Arriola does not make any arguments addressing
the merits of his constitutional claims or the reasons given by
the district court for denying his § 2255 motion. This Court
will not raise and discuss legal issues that the appellant has
failed to assert. Failure by the appellant to identify any error
in the district court's analysis or application to the facts of
the case is the same as if the appellant had not appealed that
judgment. Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
A thorough reading of Arriola’s brief reveals that he has
failed to adequately brief any issues for appeal, other than just
stating repeatedly, in a conclusionary manner, that he should
have had an evidentiary hearing, without even suggesting what
proof that hearing would entail. Arriola has had three chances
now, in his original § 2255 motion, in his supplemental motion,
and in this appellate brief, to allege specific facts to support
his conclusional allegations of constitutional errors affecting
his trial. He has failed to do so. Such conclusional
allegations do not raise a constitutional claim and do not merit
consideration under § 2255. See United States v. Pineda, 988
F.2d 22, 23 (5th Cir. 1993) (§ 2255 case); see also Ross v.
Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). The district
court did not abuse its discretion in denying Arriola’s § 2255
motion without an evidentiary hearing. Thus, there is no reason
No. 98-50349
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for this case to be remanded for further development of his
claims.
Arriola argues that he was denied due process in these
§ 2255 proceedings when the district court denied his motion
without a hearing and in light of the fact that he never received
a response from the Government to his original § 2255 motion.
Arriola does not explain why he never filed a response to the
Government’s second response, and he does not state what he would
have included in a response to the Government’s first response
which would have changed the outcome of the proceedings.
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.
United States v. Arriola
Combined Opinion