UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 92-1931
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CAROL C. PEELER,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:92-CA-847-G & 3:89-CR-028-G)
_________________________________________________________________
(January 19, 1994)
Before DAVIS, JONES and DUHÉ, Circuit Judges.*
PER CURIAM:
Defendant Carol Peeler was the president of Hillcrest
Securities and the vice-president of Hillcrest Equities when the
various Hillcrest entities came under investigation by the Internal
Revenue Service in 1984. Peeler retained Darrell Jordan of the
Hughes & Luce law firm to represent her in the ongoing
investigation and any criminal and/or civil proceedings it might
spawn.
*
Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined that this opinion
should not be published.
In December 1985, Bill Alexander, an Assistant U.S.
Attorney assisting the IRS in its investigation, allegedly offered
Jordan transactional immunity for Peeler in exchange for her
cooperation with the investigation.1 Jordan did not inform Peeler
of the offer and -- not surprisingly -- did not contact Alexander
within the time stipulated. As a result, Alexander made the same
offer to another Hillcrest principal who immediately accepted. By
late January 1986, Alexander's offer of immunity to Peeler had been
withdrawn.
Peeler was indicted on January 31, 1989, and charged with
one count of conspiracy to defraud the United States and seventeen
counts of willfully aiding and assisting in the filing of false
income tax returns. Pursuant to a plea agreement, Peeler pled
guilty in March 1989 to a single count of willfully aiding and
assisting in the filing of a false return. She was sentenced to
probation for five years and fined $100,000.
In April 1992, Peeler moved for postconviction relief
pursuant to 28 U.S.C. §2255 (1988) on the basis that Jordan's
preindictment failure to inform her of the immunity offer deprived
Peeler of her Sixth Amendment right to effective assistance of
counsel. Upon reference from the district court, the magistrate
judge issued a report recommending that the requested relief be
denied. The magistrate judge concluded that Peeler had no right to
1
Whether or not an offer of immunity was actually made is sharply
disputed. In a related malpractice action still pending in state court, Alexander
testified that the offer was clear and unequivocal, while Jordan testified that no
such offer of immunity was made. The magistrate found it unnecessary to decide the
factual disputes in denying defendant's motion for postconviction relief.
2
counsel prior to indictment and thus could have no right to
effective assistance prior to that date. The district court
adopted the magistrate judge's findings and conclusions and denied
the motion; from this denial Peeler appeals. Our de novo review
leads us to affirm the district court's denial of postconviction
relief.
It is well-established that where there is no
constitutional right to counsel there can be no deprivation of
effective assistance. Wainwright v. Torna, 455 U.S. 586, 587-88
(1982). The relevant inquiry then becomes whether Peeler had a
Sixth Amendment right to counsel over three years prior to her
indictment. However, a defendant's right to counsel attaches only
once adversary judicial proceedings are initiated against her. See
Kirby v. Illinois, 406 U.S. 682, 688 (1972). The district court
properly concluded that adversary judicial proceedings did not
commence until January 31, 1989, when Peeler was indicted.2 Even
taking as true all of Peeler's allegations, she has failed to state
a claim for deprivation of effective assistance of counsel since
she had no constitutional right to counsel prior to indictment.
On appeal, Peeler also seeks relief on the basis that
Jordan's failure to inform her of the immunity offer constituted a
deprival of due process under the Fifth Amendment. We need not
reach the merits of this independent basis for relief since Peeler
raised this argument for the first time in her objections to the
2
Adversary judicial criminal proceedings may be initiated through formal
charge, preliminary hearing, indictment, information or arraignment. See McNeil v.
Wisconsin, 111 S.Ct. 2204, 2207 (1991).
3
magistrate's report. Because the due process argument was not
properly before the district court, this court will not address it.
See United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992).
For the foregoing reasons, we AFFIRM the district court's
ruling.
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