United States Court of Appeals
Fifth Circuit
F I L E D
In the June 14, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-11215
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES DEMIK,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________
Before SMITH, BENAVIDES, and DENNIS, motions, including a motion for a new trial and
Circuit Judges. a motion to adopt his co-defendants’ motions.
In the former, Demik alleged his trial counsel
PER CURIAM: was ineffective, stating the following:
The district court denied James Demik’s re- Defendant DeMik’s counsel failed or re-
quest for an evidentiary hearing on his claim of fused direct instructions with respect to
ineffective assistance of counsel. Because the critical motions and final argument, failed
court did not abuse its discretion, we affirm. to make or register numerous motions,
objections and final argument issues de-
I. manded by remedial and historic rules of
Demik was found guilty by a jury. After effective representation and otherwise
trial, he fired his trial counsel and filed pro se failed to provide Defendant DeMik a nomi-
nal defense and/or fair and impartial trial. tion for an evidentiary hearing regarding inef-
fective assistance. That motion did not make
In the latter motion, Demik urged that any specific allegations about Demik’s trial
counsel but stated that Demik was requesting
3. One of many procedural basis [sic] for the hearing to develop a record that would al-
Defendant DeMik’s termination of trial low subsequent review of his ineffective assis-
counsel was said counsel’s the [sic] failure tance claim.
to make a pre-trial motion to severe [sic]
the government’s cause of action from oth- The district court granted the motion for a
er misjoined codefendants as expressly re- continuance of sentencing but denied a new
quested by Defendant but only revealed af- trial. The court stated that Demik’s supple-
ter the verdict was received. mental motion for new trial had not been filed
timely, so it did not consider the arguments
4. Without regard to the merit of instruc- from that motion. It did consider Demik’s al-
tions to trial counsel made by Defendant legations of ineffective assistance that he had
DeMik nor to his actions or inactions dur- raised in his initial motion for new trial. The
ing trial, Defendant and/or any appointed court construed Demik’s pro se motion as
counsel would be at an extreme disadvan- having argued that counsel was ineffective be-
tage in pursuing legitimate post guilty cause counsel had (1) refused his direct in-
and/or appellate pleadings and arguments structions regarding critical motions and final
unless Defendant DeMik is afforded the argument and (2) failed to make numerous
adoption of codefendants motions, rulings motions or objections. These allegations, the
on motions, objections and rulings on ob- court concluded, were insufficient, citing,
jections, supporting United States of Amer- among other authorities and reasons, Miller v.
ica v. Lawrence A. Shafer, et al[.], 384 F. Johnson, 200 F.3d 274, 282 (5th Cir. 2000):
Supp. 496. “[C]onclusory allegations are insufficient to
raise cognizable claims of ineffective assistance
Demik was appointed new counsel, the fed- of counsel.”
eral public defender, who filed a motion for a
continuance of sentencing, asserting that ‘[t]he The court also denied an evidentiary hear-
basis [for] this request is that Mr. Demik sin- ing. Demik argues that the court erred in that
cerely believes that he received ineffective as- ruling and contends that he raised that issue
sistance of counsel at trial, and it will take through the various motions described above.
some time to receive the transcripts and to
hold a requested hearing.” Also, the federal II.
public defender filed a supplemental motion We have not previously articulated what
for new trial, asserting numerous reasons why standard of review to use, on direct appeal, to
Demik’s trial counsel was ineffective, such as evaluate the denial of an evidentiary hearing
his failure to file an exhibit list, a witness list, regarding a claim of ineffective assistance of
jury instructions, or any objections to the gov- counsel. In cases involving petitions for writs
ernment’s filings. of habeas corpus under 28 U.S.C. § 2255, we
review the denial of an evidentiary hearing for
Finally, Demik’s new attorney filed a mo-
2
abuse of discretion.1 We now apply that stan- taken or how those actions would have affect-
dard on direct appeal. ed the outcome of the trial.
III. In his pro se motion to adopt his co-de-
Demik contends that a district court must fendants’ motions, Demik asserts onlyone mo-
hold an evidentiary hearing on a claim of inef- tion that his trial counsel did not file despite
fective assistance of counsel unless the record Demik’s instructions, but he makes no attempt
conclusively shows the defendant is entitled to to describe any harm resulting from that fail-
no relief.2 We need not decide whether that ure. Furthermore, that motion did not request
standard applies here in a case on direct ap- an evidentiary hearing regarding ineffective as-
peal, because conclusional allegations are in- sistance of counsel, but only requested that the
sufficient to require an evidentiary hearing. 3 court allow Demik to adopt his co-defendants’
Even Bartholomew, 974 F.2d at 42, on which motions and objections. Similarly, the federal
Demik relies, suggests that a complaint must public defender’s motions for a continued
have specificity to support a claim of ineffec- sentence and evidentiary hearing fail to state
tive assistance of counsel. Without such speci- specific reasons why Demik’s trial counsel was
ficity, the allegation does not require an evi- ineffective; the motions merely make a general
dentiary hearing. Id. claim that trial counsel was ineffective.4
Demik has raised only conclusional allega- AFFIRMED.
tions that his counsel was ineffective. In his
pro se motion for new trial, he makes general-
ized assertions about counsel’s failure to file
motions, to make objections, and to follow
Demik’s instructions. He does not, however,
allege what actions his attorney should have
1
United States v. Cervantes, 132 F.3d 1106,
1110 (5th Cir. 1998); United States v. Bartholo-
mew, 974 F.2d 39, 41 (5th Cir.1992) (per curiam).
2
See Bartholomew, 974 F.2d at 41 (“A motion
brought under 28 U.S.C. § 2255 can be denied
without a hearing only if the motion, files, and rec-
ords of the case conclusively show that the prisoner
is entitled to no relief.”).
3
See Davis v. Butler, 825 F.2d 892, 895 (5th
Cir. 1987) (“Given his lack of concrete allegations
4
which would require an evidentiary hearing, we de- We do not reach whether the supplemental
cline to consider this claim. See Petty v. McCotter, motion for a new trial stated allegations with suf-
779 F.2d 299, 301 (5th Cir. 1986); Hobbs v. ficient specificity, because that motion was not
Blackburn, 752 F.2d 1079, 1083 (5th Cir. timely filed, and the district court was within its
1985).”). discretion not to consider it.
3