UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30320
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL WEST,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(CA-94-1549)
February 6, 1996
Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Appellant, Michael West, brought this 28 U.S.C. § 2255
proceeding challenging his drug offense convictions. The district
court denied relief without a hearing. We affirm, although on a
different basis than the district court.
West’s primary contention is that his counsel rendered
inadequate assistance because he failed to call West’s co-
defendants, Taylor and Mitchell, who were tried with him, as alibi
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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opinion should not be published and is not precedent except under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.
witnesses. West supports his motion with an affidavit from one co-
defendant stating that he told West’s attorney that he would
testify that West was not involved in the activity which was the
subject of the indictment. The other co-defendant’s affidavit
stated that all the drugs were his, not West’s and that West did
not sell drugs to the undercover agent. We examine ineffective
assistance claims under the Strickland v. Washington, 466 U.S. 668
(1984) standard, and, assuming without deciding that counsel’s
performance was inadequate, conclude that Appellant cannot show
prejudice. We also conclude that no hearing in the district court
was required.
West and his co-defendants were tried together. West’s motion
for severance because of his desire to call one of the co-
defendants was denied. Since they were tried together, the co-
defendants would have to waive their right against self-
incrimination to testify. The trial record makes it clear that
this would not have happened. Neither co-defendant testified in
his own defense, so the statement in the affidavit of co-defendant
Taylor, made after the trial, that he would have testified is
clearly refuted. Co-defendant Mitchell does not say that he would
have testified, only that if he had he would have said that the
drugs belonged to him.
Even if we assume, however, that both co-defendants would have
testified, there is no reasonable probability that the outcome
would have been different. The evidence against West was
overwhelming. He owned and operated a business called “Master Care
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Car Wash”. In four months undercover officers made nine drug
purchases from West, Taylor and Mitchell at this location. In
meetings leading to the purchases Appellant declared that all drugs
sold by Mitchell were West’s. On one occasion agents purchased
46.2 grams of cocaine from West, who was assisted by Mitchell and
Taylor. Search warrants produced cocaine from the car wash, and
cocaine and drug paraphernalia from Appellant’s girlfriend’s house
which Appellant occupied with her. Appellant advised the police on
the day of the searches that all drugs found at the car wash and at
his girlfriend’s house were his and that the others should be
released although, at trial, Appellant denied making the statement.
In our view, the record clearly negates the need for a hearing in
the district court, especially since the § 2255 hearing was
conducted by the same judge who presided at the trial. United
States v. Briggs, 939 F.2d 222, 228 (5th Cir. 1991). The record
also adequately shows that Appellant cannot establish prejudice.
The remaining issues raised by Appellant are frivolous.
AFFIRMED.
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