Smith v. Booker ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-60474
Summary Calendar
_____________________
CLYDE WENDALL SMITH,
Petitioner-Appellant,
versus
WALTER BOOKER; MIKE MOORE, Attorney
General, State of Mississippi,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. m:98-CV-58-S-B
_________________________________________________________________
January 12, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Clyde Wendall Smith, Mississippi prisoner #44932, appeals the
dismissal of his 28 U.S.C. § 2254 petition, in which he raised five
ineffective assistance claims. The district court granted a
certificate of appealability (“COA”) on each claim.
Smith does not renew his claim that counsel was ineffective in
failing to move for a severance, and the claim is waived due to his
failure to brief it. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993); Fed. R. App. P. 28(a). For the first time on
appeal, he argues that counsel was ineffective in failing to
*
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this opinion should not be published and is not precedent except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.
present evidence that the use of brass knuckles would leave
permanent scars and in failing to point out that the victim, Lynn
Robinson, did not have any such scars. Not only does the COA not
include this issue, but this court will not consider a new theory
of relief raised for the first time on appeal. See Brown v.
Lensing, 171 F.3d 1031, 1032 n.10 (5th Cir. 1999); Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
Smith’s claim that counsel was ineffective in failing to call
Officer Thurmond fails because, even if it is assumed that counsel
was deficient in not securing Officer Thurmond’s presence, Smith
has not demonstrated any resulting prejudice since the substance of
the proposed testimony was presented via counsel’s cross-
examination of Patricia Robinson. See Strickland v. Washington,
466 U.S. 668, 694, 697 (1984). Smith’s claim that counsel was
ineffective in failing to impeach Patricia Robinson also fails
because he concedes that counsel cross-examined her regarding her
prior inconsistent statements. See id. at 687. To the extent that
Smith argues that counsel should have attempted to introduce the
prior statements formally into evidence, the claim fails because he
cannot demonstrate any prejudice flowing from the alleged error.
Id. at 694, 697. Smith’s claim that counsel was ineffective in
failing to impeach Wendell Wright with prior inconsistent
statements also fails for lack of prejudice. Id. The claim that
counsel breached the duty of loyalty is simply a restatement of
2
Smith’s other ineffective assistance claims and fails for the
reasons already stated. Id.A F F I R M E D.
3