IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20738
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL WAYNE ADAMS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(H-99-CV-1283)
(H-94-CR-121-1)
--------------------
March 14, 2003
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Darrell Wayne Adams, federal prisoner #
66135-079, has filed a motion to expand the district court’s grant
of a certificate of appealability (COA) to include claims that his
counsel rendered ineffective assistance and that the prosecution
engaged in misconduct. The district court granted COA on the issue
whether application of the rule of Apprendi v. New Jersey, 530 U.S.
466 (2000), to cases on initial collateral review was barred by
Teague v. Lane, 489 U.S. 288 (1989). We address below all of
*
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this opinion should not be published and is not precedent except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.
Adams’s claims, rather than first determining whether to expand the
grant of COA and then addressing Adams’s appeal of the issue for
which COA was granted by the district court. See United States v.
Kimler, 150 F.3d 429 (5th Cir. 1998); United States v. Kimler, 167
F.3d 889 (5th Cir. 1999).
To obtain a COA, Adams must make a substantial showing of the
denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
Adams first contends that the government engaged in misconduct by
instructing its witness, Bosia Cash, to testify falsely. To obtain
relief, Adams must show that (1) the testimony offered by the
government was actually false, (2) the government knew it was
false, and (3) the testimony was material. See Faulder v. Johnson,
81 F.3d 515, 519 (5th Cir. 1996). Adams has failed to challenge
the district court’s determination that Cash’s alleged falsehoods
either were not material or that his trial testimony was not in
conflict with his affidavit. Adams has therefore waived these
issues. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). As such, he has failed to show entitlement to relief on his
claim that the government engaged in misconduct with respect to
Cash’s testimony.
As Adams has also failed to show that Cash’s testimony was
proscribed by FED. R. EVID. 404(b), he has failed to show that his
trial counsel was ineffective. Counsel is not ineffective for
failing to raise meritless objections. See Clark v. Collins, 19
F.3d 959, 966 (5th Cir. 1994).
2
We will not consider Adams’s claim of prosecutorial misconduct
with respect to witness Kimela Lomax, because we considered that
issue in Adams’s direct appeal. See United States v. Johnston, 127
F.3d 380, 392-93 (5th Cir. 1997). Issues determined on direct
appeal need not be reconsidered in a 28 U.S.C. § 2255 motion. See
Buckelew v. United States, 575 F.2d 515, 517-18 (5th Cir. 1978).
With respect to his contention that his trial counsel was
ineffective for failing to make timely objections during Lomax’s
testimony, Adams has failed to make a substantial showing of
prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984);
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Adams has also
failed to make an adequate showing that prejudice resulted from
counsel’s failure to object to the playing of an unredacted tape
that revealed his criminal history. Neither has Adams shown that
any of counsel’s alleged deficiencies with respect to a motion in
limine rise to the level of a constitutional violation.
We will not consider Adams’s claims of prosecutorial
misconduct and ineffective assistance with respect to the testimony
of Roosevelt Gatterson, because Adams has failed to provide
citations to the relevant portions of the record. The appellant’s
argument must contain “his contentions and the reasons for them,
with citations to the authorities and parts of the record on which
the appellant relies.” FED. R. APP. P. 28(a)(9)(A); United States
v. Tomblin, 46 F.3d 1369, 1376 n.13 (5th Cir. 1995).
3
Adams’s allegations regarding his trial counsel’s manipulation
to obtain a pair of tennis shoes, his general disinterest in trial
proceedings, and his pursuit of an under-the-table fee, even if
true, are insufficient to establish either deficient performance or
prejudice, which are required to show a constitutional violation.
See Strickland, 466 U.S. at 697. Neither has Adams shown that
counsel was ineffective for failing to hire an investigator. See
United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
Finally, because Adams has failed to show any instances of
deficient performance that were prejudicial to his defense, he
cannot show prejudicial cumulative error. See Westley v. Johnson,
83 F.3d 714, 726 (5th Cir. 1996). Accordingly, Adams’s motion to
expand COA is DENIED.
We now turn to the issue on which COA was granted by the
district court. This court has definitively held that Apprendi is
not retroactively applicable to cases on initial collateral review.
See United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002).
Thus, Adams’s Apprendi-based claim fails.
The district court’s denial of Adams’s 28 U.S.C. § 2255 motion
is AFFIRMED.
AFFIRMED; MOTION TO EXPAND COA DENIED.
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