IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60362
Conference Calendar
BILLY LEE SMITH,
Petitioner-Appellant,
versus
JAMES V. ANDERSON, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY; MIKE
MOORE, The Attorney General of The
State of Mississippi,
Respondents-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:96-CV-268-S-A
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October 19, 1999
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Billy Lee Smith, Mississippi inmate #69235, appeals from the
judgment of the district court denying Smith’s application for
habeas corpus relief under 28 U.S.C. § 2254. The district court
granted Smith a certificate of appealability on the issue whether
Smith was denied the effective assistance of counsel at his
robbery trial and subsequent direct appeal of his conviction and
*
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that this opinion should not be published and is not precedent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. 99-60362
-2-
15-year sentence as a habitual offender. Smith contends that his
counsel was deficient for failing to challenge the habitual-
offender portion of the indictment, which appeared after the
phrase “against the peace and dignity of the state,” in violation
of Miss. Const. art 6, § 169.
Smith has not satisfied the test for postconviction relief
for ineffective assistance of counsel set out in Strickland v.
Washington, 466 U.S. 668 (1984). At the time of his trial in
1992 and when his direct appeal was filed in 1993, there was no
clear basis for an objection to the indictment because McNeal v.
State, 658 So. 2d 1345 (Miss. 1995) had not yet been decided.
Therefore, the judgment of the district court must be affirmed.
AFFIRMED.