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United States v. Greer, 95-10505 (1995)

Court: Court of Appeals for the Fifth Circuit Number: 95-10505 Visitors: 70
Filed: Sep. 18, 1995
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-10505 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOHNNY LEE GREER, Defendant-Appellant. - Appeal from the United States District Court for the Northern District of Texas USDC No. 90-CR-328-R - 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 bas
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                         __________________

                            No. 95-10505
                         __________________


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOHNNY LEE GREER,

                                      Defendant-Appellant.


                        ---------------------

          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 90-CR-328-R

                        ---------------------

                         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that this opinion should not be published.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
                                  -3-


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.

Source:  CourtListener

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