United States v. Lewis

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 26, 2006

Charles R. Fulbruge III
Clerk
No. 03-31135
Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JERNARD LEWIS

Defendant - Appellant

--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CV-3136-N
USDC No. 98-CR-207-13
--------------------

Before KING, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

Jernard Lewis, federal prisoner # 01166-748, was convicted

by a jury of conspiring to distribute cocaine base and cocaine

hydrochloride and of using and carrying firearms during and in

relation to a drug offense. He appeals the district court’s

denial of relief on his 28 U.S.C. § 2255 motion challenging his

life sentence for the drug offense. Lewis has moved to stay his

appeal pending Supreme Court decisions in two unrelated cases.

Because Mayle v. Felix, 125 S. Ct. 2562 (2005), has been decided,

*
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this opinion should not be published and is not precedent except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. 03-31135
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this motion is DENIED as unnecessary. Lewis’s motion for a stay

pending a decision in Washington v. Recuenco, 110 P.3d 188

(Wash.), cert. granted, 126 S. Ct. 478 (2005), is also DENIED.

See United States v. Robinson, 367 F.3d 278, 285-86 (5th Cir.),

cert. denied, 543 U.S. 1005 (2004); cf. Wicker v. McCotter, 798

F.2d 155, 157-58 (5th Cir. 1986).

The district court granted a certificate of appealability

(COA) as to four issues. Lewis moves for a supplemental COA on

his assertion that his enhanced sentence violated Blakely v.

Washington, 542 U.S. 296 (2000). Lewis, however, has not shown

“that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, COA is

DENIED.

Lewis contends that his appellate attorney rendered

ineffective assistance by not raising a claim pursuant to

Apprendi v. New Jersey, 530 U.S. 466 (2000). He has not

established a “reasonable probability” of “a different outcome if

the attorney [had] adequately addressed the issue.” United

States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir. 2001).

Lewis argues that his sentence violated due process under

Apprendi because the jury had not made a finding of the requisite

drug quantity to support his life sentence. He maintains that he

has established cause and prejudice for failing to raise the

claim on direct appeal, allowing him to present it in his § 2255
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motion. Because Lewis has not established the ineffectiveness of

appellate counsel, he has not shown cause to overcome the

procedural default. See United States v. Walker, 68 F.3d 931,

934 (5th Cir. 1995).

Lewis asserts that the district court abused its discretion

in denying his motion to amend his § 2255 motion to add a claim

that trial counsel rendered ineffective assistance by not raising

at sentencing a challenge to his life sentence pursuant to Jones

v. United States, 526 U.S. 227 (1999). Even if it is assumed

that the amendment would relate back to the time of Lewis’s

original pleading under FED. R. CIV. P. 15(c)(2), Lewis is not

entitled to relief on this ground. He has not established that

his trial counsel rendered ineffective assistance at sentencing.

See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.

2000); Lucas v. Johnson, 132 F.3d 1069, 1078-79 (5th Cir. 1998).

The judgment of the district court denying Lewis’s § 2255 motion

is AFFIRMED.