United States v. Greer ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10505
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY LEE GREER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 90-CR-328-R
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September 11, 1995
Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
A district court may dismiss an in forma pauperis (IFP)
complaint as frivolous pursuant to 28 U.S.C. § 1915(d) if it
lacks an arguable basis in law or fact. Eason v. Thaler, 14 F.3d
8, 9 (5th Cir. 1994).
To prevail on a claim of ineffective assistance of counsel,
a defendant must show: (1) that his counsel's performance was
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-10505
-2-
deficient in that it fell below an objective standard of
reasonableness and (2) that the deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 689-94
(1984). To show Strickland prejudice, a defendant must
demonstrate that counsel's errors were so serious as to "render[]
the result of the trial unreliable or the proceeding
fundamentally unfair." Lockhart v. Fretwell, 113 S. Ct. 838, 844
(1993). "Unreliability or unfairness does not result if the
ineffectiveness of counsel does not deprive the defendant of any
substantive or procedural right to which the law entitles him."
Id.
Greer argues that his counsel was ineffective for failing to
subpoena his codefendant, Carlton Sims, to testify. Because
Sims' statements directly contradict his prior sworn statements,
and the record contains substantial evidence of Greer's
involvement in the robberies, Greer failed to overcome the
presumption that counsel's failure to call Sims to testify was
sound trial strategy.
Greer argues that he received ineffective assistance because
his trial counsel elicited hearsay evidence through examination
of a witness and introduced otherwise inadmissible evidence that
explosives were found during a search of his apartment, thereby
allowing the jury to consider prejudicial evidence.
In light of the overwhelming evidence supporting the jury's
verdict, and Greer's lack of support for his argument that
counsel's introduction of alleged hearsay testimony and
prejudicial evidence was deficient, he has failed to show that
No. 95-10505
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but for admission of the challenged evidence, the jury's verdict
would have been different.
Greer argues that he received ineffective assistance because
his counsel failed to make appropriate objections to the PSR,
subjecting him to a four-level increase in his base offense
level.
Greer states no basis on which counsel should have objected
to the PSR. Thus, Greer fails to show that counsel was
deficient.
Greer argues that his trial counsel failed to cross examine
witnesses adequately. Greer did not raise this issue in the
district court and failed to brief the issue. Although this
court liberally construes pro se briefs, see Haines v. Kerner,
404 U.S. 519, 520 (1972), the court requires arguments to be
briefed in order to be preserved. Yohey, 985 F.2d at 225.
Claims not adequately argued in the body of the brief are deemed
abandoned on appeal. Id. at 224-25.
Greer failed to present any nonfrivolous issues for appeal.
Greer is warned that he will be sanctioned if he files frivolous
appeals in the future. See Smith v. McCleod, 946 F.2d 417, 418
(5th Cir. 1991); Jackson v. Carpenter, 921 F.2d 68, 69 (5th Cir.
1991).
MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS DENIED; APPEAL
DISMISSED.