United States v. Castro-Cuellar ( 1996 )

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                 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-20764
Summary Calandar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN ERNESTO CASTRO-CUELLAR;
ARACELY CASTRO, also known as Chela,
Defendants-Appellants.
---------------------
Appeal from the United States District Court
for the Southern District of Texas
(95-CV-3725)
---------------------
July 1, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Ernesto Castro-Cuellar appeals the denial of his motion
to vacate his sentence, filed pursuant to 28 U.S.C. § 2255.                 He
argues that the seizure of his home after his criminal conviction
constitutes a violation of the Double Jeopardy Clause.               Castro's
home was forfeited pursuant to 21 U.S.C. § 853 and as a result of
the criminal proceeding that also resulted in his conviction.              The
*
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should not be published and is not precedent except under the limited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. 95-20764
-2-
Double Jeopardy Clause did not preclude the government from seeking
the full range of statutorily authorized criminal penalties in the
same proceeding, because the total punishment did not exceed that
authorized by law.   United States v. Halper,

490 U.S. 435

, 450
(1989).
Castro argues that he received ineffective assistance of
counsel at trial.    Castro's allegations fail to show how the
purported deficient performance prejudiced his defense. Strickland
v. Washington,

466 U.S. 668

, 687-94 (1984); Anderson v. Collins,

18 F.3d 1208

, 1221 (5th Cir. 1994).
Castro asserts that the government engaged in prosecutorial
misconduct when the prosecutor presented hearsay evidence to the
grand jury and expressed an opinion as to his guilt.   Prosecutorial
misconduct before the grand jury is deemed harmless after a guilty
verdict has been returned by a petit jury.       United States v.
Mechanik,

475 U.S. 66

, 70 (1986); Wilkerson v. Whitley,

28 F.3d 498

, 503 (5th Cir. 1994), cert. denied,

115 S. Ct. 740

(1995).
Castro also argues that his right to a speedy trial was
violated, that his indictment was multiplicitous, and that the
statutes under which he was convicted are unconstitutional.    None
of these issues was presented to the district court or rises to the
level of plain error so as to require review by this court.      See
United States v. Calverley,

37 F.3d 160

, 162-64 (5th Cir. 1994) (en
No. 95-20764
-3-
banc), cert. denied,

115 S. Ct. 1266

(1995); see also Highlands
Ins. Co. v. National Union Fire Ins. Co.,

27 F.3d 1027

, 1031-32
(5th Cir. 1994), cert. denied,

115 S. Ct. 903

(1995).
Castro argues that the district court erred when it summarily
dismissed his motion and did not hold an evidentiary hearing. Rule
4(b) of the Rules Governing Section 2255 Proceedings permits
summary denial of a § 2255 motion.   Moreover, because the record
conclusively showed that Castro was entitled to no relief, the
district court was not required to conduct an evidentiary hearing.
United States v. Drummond,

910 F.2d 284