IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40450
Summary Calendar
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ALMA SHERMAN,
Petitioner-Appellant,
versus
TDC DIRECTOR, Texas Department
of Criminal Justice,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:94-CV-704
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January 8, 1996
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Texas prisoner Alma Sherman appeals the dismissal of her
petition for federal habeas corpus relief. Sherman contends that
police failed to administer Miranda warnings to her and violated
the Fourth Amendment by conducting a warrantless search; that her
state-court indictment was defective; that her bail conditions
were excessive; that she received ineffective assistance of
counsel at trial and on appeal; that the prosecutor engaged in
reversible misconduct; that the evidence was insufficient to
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
No. 95-40450
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support her conviction; that her sentence violated equal
protection; and that the state-court judge responded erroneously
to a jury inquiry at sentencing. Additionally, Sherman moves for
reduction of her sentence pursuant to FED. R. CRIM. P. 35(b), for
default judgment against the respondent, and for appointment of
counsel to represent her on appeal.
Sherman raised her contentions regarding Miranda, the Fourth
Amendment, her indictment, and her bail conditions in her
response to the respondent's answer in the district court; the
district court did not consider those contentions. We find no
reversible error on those contentions, however. First, Sherman
does not allege that she made any inculpatory statements before
she actually received her Miranda warnings, requiring exclusion
of any evidence. See United States v. Bengivenga, 845 F.2d 593,
600 (5th Cir.)(en banc), cert. denied, 488 U.S. 924 (1988).
Second, Sherman has not shown that she lacked a full and fair
opportunity to litigate her Fourth Amendment contention in state
court. Davis v. Blackburn, 803 F.2d 1371, 1372 (5th Cir. 1986).
Third, the Texas Court of Criminal Appeals implicitly held that
the state trial court had jurisdiction and that the indictment
was sufficient, precluding this court from examining the
sufficiency of Sherman's indictment. Yohey v. Collins, 985 F.2d
222, 229 (5th Cir. 1993); Alexander v. McCotter, 775 F.2d 595,
598-99 & n.1 (5th Cir. 1985). Fourth, Sherman's excessive bail
contention was mooted by her conviction. Murphy v. Hunt, 455
U.S. 478, 481 (1982).
Sherman has failed to brief several of her ineffective-
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assistance contentions for appeal and has abandoned those
contentions. See Grant v. Cuellar, 59 F.3d 523, 525 (5th Cir.
1995). Sherman raises two other ineffective-assistance
contentions for the first time on appeal. Resolution of those
contentions would require us to make factual determinations; we
will not make such determinations. Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991). We have examined the remainder of
Sherman's ineffective-assistance contentions on their merits and
hold that Sherman did not receive ineffective assistance of
counsel at trial or on appeal from any of the three attorneys who
were appointed to represent her.
The prosecutor's remarks at trial did not violate Sherman's
right to a fair trial. Sherman was charged with a drug offense;
the prosecutor could indicate to the jury that he wished the jury
to infer that Sherman was a drug dealer. Foy v. Donnelly, 959
F.2d 1307, 1317-18 (5th Cir. 1992). Additionally, no manifest
injustice will result because we decline to consider Sherman's
contention raised for the first time on appeal that the
prosecutor violated her right to a fair trial by referring to the
prosecution's failure to present evidence of any criminal record;
defense counsel opened the door to the prosecutor's remark.
Varnado, 920 F.2d at 321.
The evidence was sufficient to support Sherman's conviction.
White testified that Sherman sold him crack cocaine. White's
testimony was corroborated by Hall. See Young v. Guste, 849 F.2d
970, 972 (5th Cir. 1988).
Sherman has not shown that her sentence violated the Equal
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Protection Clause. Disparate impact alone is insufficient to
show a violation of equal protection. United States v. Galloway,
951 F.2d 64, 65 (5th Cir. 1992). Sherman's allegation that the
disparate sentenced in various drug cases were based on racial
animus is conclusional and is insufficient to raise a
constitutional issue. Ross v. Estelle, 694 F.2d 1008, 1012 (5th
Cir. 1983).
The state-court judge properly instructed the jury about
sentencing options for Sherman. The state court need not have
responded to the jury's request to clarify the difference between
life imprisonment and 99 years' imprisonment.
Regarding Sherman's motions, the Federal Rules of Criminal
Procedure are inapplicable to habeas corpus cases. Sherman's
motion for a reduction of her sentence is DENIED. Additionally,
her motion for a default judgment against the respondent is
DENIED. Finally, the interests of justice do not require
appointment of counsel for Sherman. Schwander v. Blackburn, 750
F.2d 494, 502 (5th Cir. 1985). Her motion for appointment of
counsel is DENIED.
AFFIRMED.