United States v. Ferez ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50059
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO FEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-96-CA-168-H
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June 4, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Ferenando Ferez appeals from the district court’s order
denying his 28 U.S.C. § 2255 motion. He argues that the district
court erred in denying his petition because the Government
committed prosecutorial misconduct by allowing a key witness and
confidential informant to abscond to Mexico, and he argues that
the Government committed prosecutorial misconduct during closing
arguments. He further argues that he should have been granted an
evidentiary hearing on these claims. We have reviewed 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that this opinion should not be published and is not precedent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. 97-50059
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record, the parties’ briefs, and the district court’s opinion.
We find that Ferez’s § 2255 motion was procedurally barred
because (1) he did not establish cause for his failure to assert
these errors on direct appeal, (2) nor did he establish any
resulting prejudice; (3) nor did he make any assertion of
manifest injustice, and (4) the Government invoked the procedural
bar in the district court. See United States v. Shaid, 937 F.2d
228, 231-32 (5th Cir. 1991)(en banc); United States v. Guerra, 94
F.3d 989, 993 (5th Cir. 1996); United States v. Drobny, 955 F.2d
990, 994-95 (5th Cir. 1995).
Samaniego’s absence at trial was not prejudicial because
Ferez’s own testimony introduced the evidence of entrapment that
allegedly would have been corroborated by Samaniego, but was
belied by his admission under cross examination that he had
agreed to the drug trafficking transaction because he thought it
would be profitable. Furthermore, the prosecution’s comments on
closing argument did not substantially affect Ferez’s right to a
fair trial. They did not have a substantial prejudicial effect
given the context of the entire trial and the evidence of Ferez’s
guilt was strong. See United States v. Rodriguez, 43 F.3d 117,
123-24 (5th Cir. 1994); United States v. Garza, 608 F.2d 659, 662
(5th Cir. 1979). Because the allegations contained in Ferez’s
habeas petition are contradicted by the record, and because he
failed to establish cause and prejudice for failing to raise
either alleged error in a direct appeal, no § 2255 hearing is
No. 97-50059
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required. See United States v. Fishel, 747 F.2d 271, 273 (5th
Cir. 1984).
AFFIRMED.