United States v. Stiles ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40343
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY D. STILES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:95-CV-234
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November 15, 1996
Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Jerry D. Stiles, federal inmate #04651-078, appeals the
denial of his 28 U.S.C. § 2255 motion. Stiles does not raise an
issue concerning two grounds raised in his § 2255 motion: the
trial court’s failure to instruct the jury on the issue of
materiality and the Government’s purported failure to disclose
exculpatory evidence concerning one witness, James Goggans. Any
argument as to these issues are deemed abandoned on appeal. See
*
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that this opinion should not be published and is not precedent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. 96-40343
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Eason v. Thaler, 14 F.3d 8, 9 n.1 (5th Cir. 1994).
Stiles raises the following arguments: 1) his ineffective-
assistance claims are not procedurally barred in a collateral
proceeding; 2) counsel rendered ineffective assistance by failing
to interview Goggans and others and to mount a defense based on
Stiles’ reliance on the advice of counsel; 3) the trial court
erred in failing to give the requested jury instruction on good-
faith reliance on counsel’s advice; and 4) counsel was
ineffective on appeal by failing to challenge the trial court’s
failure to give that requested instruction.
Stiles failed to make the necessary showing of cause and
prejudice on his ineffective-assistance claim concerning the
investigation and presentation of the advice-of-counsel defense.
See Strickland v. Washington, 466 U.S. 668, 687 (1984).
Appellate counsel did challenge the district court’s refusal to
give the requested jury instruction. Thus, there is no factual
basis for Stiles’ ineffective-assistance claim. Further, this
court’s determination of the jury-instruction issue in affirming
Stiles’ conviction forecloses consideration of the issue in a
§ 2255 proceeding. United States v. Kalish, 780 F.2d 506, 508
(5th Cir.), cert. denied, 476 U.S. 1118 (1986).
This court has not yet determined whether a certificate of
appealability (COA) is required under the circumstances of this
appeal. See 28 U.S.C. § 2253. To the extent that a COA is
required, we construe Gonzalez’ notice of appeal as an
No. 96-40343
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application for a COA and DENY the motion.
AFFIRMED.