Curry v. Johnson ( 1999 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 98-51042
    Summary Calendar
    SAMUEL LEE CURRY, JR.,
    Petitioner-Appellant,
    versus
    STATE OF TEXAS; GARY L. JOHNSON,
    DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
    INSTITUTIONAL DIVISION,
    Respondents-Appellees.
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. A-97-CV-106
    - - - - - - - - - -
    August 13, 1999
    Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Samuel Curry (“Curry”), Texas state prisoner # 706332, has
    appealed the denial of his petition for federal habeas relief.
    He argues that the district court erred in denying review of his
    claim, that his plea was involuntary and the result of
    ineffective assistance of counsel because his state and federal
    sentences did not run concurrently as promised in his state plea
    agreement, since he procedurally defaulted it in state court.
    *
    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    that this opinion should not be published and is not precedent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. 98-51042
    -2-
    Curry also argues that the district court erred in denying his
    claim that he received ineffective assistance of counsel because
    his attorney failed to file timely pre-trial motions and to
    prepare adequately for trial by properly investigating his case
    and interviewing witnesses.   Curry has recently filed motions for
    a transcript and to file supplemental brief.
    Curry’s motions are denied.    He has not demonstrated why the
    transcript of the hearing is necessary given that he had access
    to the audiotapes of the hearing.
    The district court correctly denied federal habeas review to
    Curry’s concurrent sentences claim because he defaulted the claim
    in state court pursuant to an independent and adequate state
    procedural rule and was not able to demonstrate actual prejudice
    as a result of the alleged violation of federal law.    See Coleman
    v. Thompson, 
    501 U.S. 722
    , 750 (1991).   The district court also
    correctly denied his other ineffective assistance of counsel
    claims because he failed to show prejudice.    See Hill v.
    Lockhart, 
    474 U.S. 52
    , 59 (1985).   The judgment of the district
    court is AFFIRMED.
    AFFIRMED; MOTIONS DENIED.
    

Document Info

Docket Number: 98-51042

Filed Date: 8/18/1999

Precedential Status: Non-Precedential

Modified Date: 4/18/2021