IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-60462

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROGER WILLIAM SIMS,

Defendant-Appellant.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

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No. 95-60493

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JACQUELINE JAMES,

Defendant-Appellant.

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Appeals from the United States District Court

for the Northern District of Mississippi
 

*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this opinion should not be published and is not precedent except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.

2

(3:93-CV-70-S & CRD91-21)

_________________________________________________________________

November 22, 1996

Before KING, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

 Appellants Roger William Sims and Jacqueline James appeal

the district court’s judgment denying their § 2255 motions to

vacate.

I. BACKGROUND

In 1991, a five-count superseding indictment charged Roger

William Sims and Jacqueline James, now federal prisoners, with

the following offenses: conspiracy to possess with intent to

distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),

846 (Count 1); two counts of distribution of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (Counts 2 and 3); and use of a

firearm during and in relation to a drug-trafficking offense, in

violation of 18 U.S.C. § 924(c) (Count 4). In Count 5, Sims

alone was charged with being a felon in possession of a firearm

shipped in interstate commerce, in violation 18 U.S.C.

§§ 922(g)(1), 924. Both Sims and James were convicted of all

counts with which they were charged. The court sentenced Sims to

a total of 204 months in prison and 8 years of supervised release
 

1 The movants made the following arguments: (1) A charge

under 21 U.S.C. § 845(a), for distribution of drugs to person

3

and sentenced James to a total of 180 months in prison and 8

years of supervised release. 

Sims and James together appealed their convictions and

sentences. They both argued that the district court failed to

suppress evidence seized pursuant to a warrant and that the

evidence of their use of a firearm during a drug-trafficking

offense was insufficient. Sims also argued that insufficient

evidence existed to prove his possession of the firearm. This

court affirmed, finding that even if the affidavit in support of

the search warrant was insufficient, “the evidence is clear that

the officers executing it were in good faith in their reliance on

its validity.” Moreover, the existence of a loaded pistol in a

dresser, in the same bedroom from which they conducted crackcocaine transactions, was ruled by this court sufficient to

establish the gun’s use in drug-trafficking crimes. This court

also found sufficient evidence to establish that Sims had

constructive possession of the gun. 

In 1993, Sims and James filed § 2255 motions to vacate, each

alleging twelve nearly identical grounds of relief. The two then

added a thirteenth ground; in the amended pleading, Sims began

listing both himself and James as movants. Sims then filed an

amended § 2255 motion, purportedly on behalf of both himself and

James; he listed twenty grounds of relief.1 The movants then
under 21, did not correlate with the language in the indictment;

(2) the search warrant was wrongfully issued to an unauthorized

state officer; (3) the seizure of a footlocker “without adding it

to the inventory list” made the footlocker inadmissible; (4) a

Mississippi judge was not authorized to issue a warrant

“authorizing a federal search”; (5) a Mississippi justice of the

peace (“JP”) should have fixed a return date on the search

warrant; (6) the JP should have kept a copy of the warrant and

affidavit; (7) the federal magistrate judge lacked authority to

issue “seizure warrants” arising from an illegal search of the

footlocker; (8) the DEA could not administratively forfeit

property that the state had initially seized; (9-13) the evidence

did not support any of the five counts of conviction; (14) Sims’s

felon-in-possession conviction was invalid because his rights had

been restored by the State of Mississippi; (15) the conviction

for use of a firearm during a drug-trafficking offense violated

the movants’ double jeopardy rights; (16) the imposition of a

fine upon Sims violated his Eighth Amendment rights; (17) the

court sentenced Sims upon an amount of cocaine that was not

reasonably foreseeable to him; (18) state and federal officers

conspired to encourage witnesses to give false statements against

the movants; (19) the movants were denied effective assistance of

counsel; and (20) the movants’ sentences, based on

disproportionate penalties for crack cocaine and powder cocaine

offenses, violated the rule of lenity. 

 

2 They argued that the administrative forfeiture violated

their double jeopardy rights. 

4

added a twenty-first claim.2 The district court issued a onepage order denying each motion. The court’s discussion reads as

follows:

Having duly considered all aspects of

petitioner’s motion, the court finds that the

claims of petitioner were previously disposed

of on direct appeal, or are procedurally

barred by failure to raise them at trial and

on direct appeal, or are beyond the

jurisdiction of the court, and otherwise are

totally without merit and should be and are

hereby OVERRULED.

Sims and James filed timely notices of appeal. This is a

consolidated appeal from the denial of 28 U.S.C. § 2255 motions
 

3 Sims and James filed their notices of appeal prior to the

effective date of the Antiterrorism and Effective Death Penalty

Act of 1996. The Act amended 28 U.S.C. § 2253 to require a

certificate of appealability in an appeal from a final order in a

5

filed by Sims and James, who were convicted and sentenced at the

same trial. They raise thirteen points before the court in this

action.

II. DISCUSSION

Issue 1: Sufficiency of the evidence to support convictions for

“use” of a firearm

Sims and James argue that there is insufficient evidence to

support their convictions for “use” of a firearm during a drugtrafficking offense under 18 U.S.C. § 924(c). The government

concedes that the convictions should be vacated as to this count. 

Thus, as to Sims (No. 95-60462), we vacate the district court’s

Order Overruling Motion and Dismissing Cause insofar as it

dismissed Sims’s claim in his amended § 2255 motion to vacate his

§ 924(c) conviction (ground 12), and we remand with instructions

to vacate his § 924(c) conviction (Count 4) and to resentence him

accordingly. As to James (No. 95-60493), we vacate the district

court’s Order Overruling Motion and Dismissing Cause insofar as

it dismissed James’s claim in her amended § 2255 motion to vacate

her § 924(c) conviction (ground 12), and we remand with

instructions to vacate her § 924(c) conviction (Count 4) and to

resentence her accordingly. In all other respects, the district

court’s judgment is affirmed.3
§ 2255 action. Assuming without deciding that such a certificate

is required in this appeal, in view of the government’s

concession regarding the convictions for use of a firearm, we

grant the certificate.

6

Issue 2: Double Jeopardy claim

Pursuant to 21 U.S.C. § 881, the government seized property

from the residence where drug activity occurred. The

administrative procedure was uncontested, and the property was

forfeited. Sims and James argue that the forfeited property

belonged to them, that the forfeiture constitutes punishment, and

that their convictions on drug-related charges violates the

Double Jeopardy Clause. This claim is without merit. The

Supreme Court recently held that a forfeiture under 21 U.S.C.

§ 881 is civil in nature and is an in rem proceeding; "in rem

civil forfeitures are neither `punishment’ nor criminal for

purposes of the Double Jeopardy Clause." See United States v.

Ursery, 116 S. Ct. 2135, 2147-49 (1996). Sims and James complain

that they received no notice of the proceeding. This is

irrelevant to a claim of double jeopardy because they were not

parties to the proceeding. See United States v. Arreola-Ramos,

60 F.3d 188, 190 (5th Cir. 1995). Finally, Sims and James

contend that because civil forfeiture is punishment and they were

punished again, “it also violates the Excessive Fine Clause under

the Eighth Amendment.” Having rejected their double jeopardy

arguments, this argument has no merit.
7

Issue 3: Seizure of footlocker

Sims and James argue that during the search of their

residence, the officers found a key in a jacket pocket to a

double-locked footlocker. The officers opened the footlocker and

seized its contents, including cash and jewelry. Sims and James

discovered after the trial that the footlocker was not put on the

inventory list of things seized from the premises. Sims and

James argue that the search of the footlocker was illegal and

thus its contents were inadmissible as “fruits of the poison

tree.” Sims and James also assert that their trial attorneys

were ineffective for failing to make this objection at trial. 

The only authority Sims and James cite for their inventory

list claim is Vance v. United States, 676 F.2d 183 (5th Cir.

1982). In Vance, officers impounded and inventoried the contents

of a van. Id. at 184. Four days later, the van was searched

again, without a warrant. Id. at 185. This court held that the

second search was unlawful. Id. at 187. Sims and James’s

argument is without merit because Vance in no way supports the

proposition that every container inside a house searched pursuant

to a valid warrant must be included on an inventory list. At

most, this is a ministerial defect in the return of a warrant and

does not invalidate the search. See United States v. Diecidue,

603 F.2d 535, 562 (5th Cir. 1979), cert. denied, 445 U.S. 946,

and cert. denied, 446 U.S. 912 (1980); see also United States v.
8

Giwa, 831 F.2d 538, 543-44 (5th Cir. 1987) (noting that in

general, "any container situated within residential premises

which is the subject of a validly-issued warrant may be searched

if it is reasonable to believe that the container could conceal

items of the kind portrayed in the warrant" (quoting United

States v. Gray, 814 F.2d 49, 51 (1st Cir. 1987))).

To prevail on their claim for ineffective assistance of

counsel, Sims and James must show "that counsel's performance was

deficient" and "that the deficient performance prejudiced the

defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Because the evidence was legally seized, trial counsels’

performance was not deficient. 

Issue 4: Ineffective assistance of counsel for failure to file

motions for new trial based on perjured testimony

Sims and James contend that their attorneys were ineffective

by failing to object to the prosecution’s use of the testimony of

a confidential informant, Lucy Cook, that was “false and

contradictory” to that of another witness. They argue that Cook

falsely testified that she bought crack cocaine from Sims rather

than from a third defendant, Randy James, thus providing the only

basis for Sims’s cocaine-distribution convictions. They rely on

an affidavit completed by Cook. Although they do not

specifically state that the perjured testimony was given with

actual knowledge by the prosecutor, they argue that “the
9

prosecution knew or should have known about the fa[l]se

testimony.” 

A conviction obtained by the knowing use of perjured

testimony is fundamentally unfair and must be set aside if there

is any reasonable likelihood that the testimony could have

affected the jury's judgment. Giglio v. United States, 405 U.S.

150, 153-54 (1972). To prevail on a claim that the prosecution

used perjured testimony, a movant must show that “(1) the

statements were actually false; (2) the state knew they were

false; and (3) the statements were material, i.e., a highly

significant factor reasonably likely to have affected the jury's

verdict.” Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir.), cert.

denied, 115 S. Ct. 671 (1994). 

In Cooks’ affidavit, purportedly signed on May 5, 1993, she

attests that “at the time before and during trial, [she] was

mental[ly] incompetent due [to] the fact that [she] was heavy

[sic] addicted to cocaine,” that she would “mostly do anything”

to get money to satisfy her addiction, and that she lied at trial

about buying crack from Sims in return form $100. This court

recently reiterated that "recanting affidavits and witnesses are

viewed with extreme suspicion." Spence v. Johnson, 80 F.3d 989,

1003 (5th Cir. 1996) (internal quotation omitted), petition for

cert. filed (Aug. 5, 1996) (No. 96-5498).
10

The jury rendered its verdict on November 1, 1991. Sims and

James do not suggest that their attorneys actually knew that

Cook’s testimony was perjured at that time. Although a motion

for new trial based on newly discovered evidence may be made

“only before or within two years after final judgment,” FED. R.

CRIM. P. 33, the movants fail even to allege that the attorneys

should have known about Cook’s recantation within this period. 

They have not established that the attorneys’ performance was

deficient in this respect.

Issue 5: Failure of federal judge to issue search warrant

Sims and James argue that the evidence seized from the James

home was inadmissible because the search warrant was issued by a

state justice of the peace, who was not a “court of record” under

FED. R. CRIM. P. 41(a). This argument is meritless. As we held

en banc in United States v. McKeever, 905 F.2d 829, 833 (5th Cir.

1990), Rule 41 “only applies to warrants issued ‘upon the request

of a federal law enforcement officer’” and thus the “‘state court

of record’ requirement . . . has no application to the warrant

issued in this case.” Because the warrant in this case was not

requested by federal law enforcement officers, Rule 41 does not

apply. Sims and James allege ineffective assistance of counsel

based on the failure to make this argument; however, because the

argument is without merit, trial counsels were not deficient for

failing to advance the argument.
11

Issue 6: Failure of state judge to affix return date on warrant

Sims and James contend that the warrant was invalid because

the state justice of the peace failed to affix a return date on

the face of the warrant, as is alleged to be required by a

Mississippi statute. The question, however, is not whether the

search is valid under state law, but whether it is valid under

the Fourth Amendment. United States v. Walker, 960 F.2d 409, 415

(5th Cir.), cert. denied, 113 S. Ct. 443 (1992). We have

previously held that defects in the return of a warrant are

ministerial and thus do not invalidate a search. Diecidue, 603

F.2d at 562. Thus, Sims and James’s claim is without merit. 

Sims and James allege ineffective assistance of counsel based on

the failure to make this argument; however, because the argument

is meritless, their trial attorneys were not deficient for

failing to advance it.

Issue 7: Sufficiency of the evidence to support Sims’s firearms

convictions

Sims argues that the government failed to prove that he was

“in possession” of the gun found in the James house so as to

convict of him of the firearms counts. This claim was argued on

direct appeal and resolved against Sims. “[I]ssues raised and

disposed of in a previous appeal from an original judgment of

conviction are not considered in § 2255 Motions." United States

v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, 476 U.S.

1118 (1986).
12

Issue 8: Restoration of rights claim

Sims contends that his felon-in-possession conviction under 

18 U.S.C. § 924(g) was invalid because his rights “to vote and

run for any public office was [sic] restored [to him] in 1987,”

upon his release from state prison. He argues that his right to

bear firearms was not explicitly revoked. He asserts that

counsel was ineffective for failing to raise this argument. At

trial, Sims, through counsel, stipulated that he had previously

been convicted of a felony at the time of the instant offense.

Section 922(g) makes it illegal for any person "who has been

convicted in any court of a crime punishable by imprisonment for

a term exceeding one year . . . to . . . possess in or affecting

commerce, any firearm . . . ." Section 921(a)(20) explains that 

[w]hat constitutes a conviction of such a crime shall

be determined in accordance with the law of the

jurisdiction in which the proceedings were held. Any

conviction which has been expunged, or set aside or for

which a person has been pardoned or has had civil

rights restored shall not be considered a conviction

for purposes of this chapter, unless such pardon,

expungement, or restoration of civil rights expressly

provides that the person may not ship, transport,

possess, or receive firearms. 

(emphasis added). In United States v. Thomas, 991 F.2d 206 (5th

Cir.), cert. denied, 510 U.S. 1014 (1993), this court adopted the

reasoning of the Seventh Circuit in concluding that

“[i]f the state sends the felon a piece of paper [or

certificate] implying that he is no longer ‘convicted’

and that all civil rights have been restored, a

reservation in the corner of the state’s penal code can
13

not be the basis of a federal prosecution. A state

must tell the felon that [firearms] are not kosher.”

Id. at 213 (alterations in original) (quoting United States v.

Erwin, 902 F.2d 510, 512-13 (7th Cir.), cert. denied, 498 U.S.

859 (1990)). In contrast to the situation described in Thomas,

Sims was not told that all or substantially all of his civil

rights had been restored. Instead, he was told that “[t]he right

of suffrage is hereby fully and completely restored to Roger

Sims.” Furthermore, Mississippi specifically prohibits a

convicted felon from possessing firearms without being granted a

certificate of rehabilitation after a court has determined, inter

alia, that the person is not “likely to act in a manner dangerous

to public safety.” MISS. CODE ANN. § 97-37-5. The record does not

indicate, and Sims does not allege, that he has ever even

requested such a certificate. Thus, Sims’s conviction for being

a felon in possession of a firearm was not erroneous, and his

attorney was not deficient for failing to object on this basis.

Issue 9: Seizure of property by the DEA

Sims and James contend that the DEA’s seizure (and

subsequent civil forfeiture) of property from them was illegal

because the State of Mississippi “never relinquished” the

property to the agency. This issue is not constitutional and

could have been raised on direct appeal, and thus it is outside

the scope of § 2255. See United States v. Vaughn, 955 F.2d 367,

368 (5th Cir. 1992); see also Dawkins v. United States, 883 F.
 

4 In his reply brief, Sims asserts that his trial counsel

was ineffective for failing to make this argument at trial. We

do not consider arguments made for the first time in a reply

brief. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.), cert.

denied, 115 S. Ct. 189 (1994).

14

Supp. 83, 85 (E.D. Va.) (“[A] federal court may only consider a

§ 2255 petition that challenges custody under a federal criminal

conviction or sentence. Nowhere does the statute authorize

collateral attacks on civil administrative forfeitures . . . .

These proceedings . . . were entirely civil in nature . . .;

thus, the forfeitures fall outside the recognized scope of

[§ 2255].”), aff’d, 67 F.3d 297 (4th Cir. 1995) (table).

Issue 10: Eighth Amendment claim for imposition of fine

Sims contends that the trial court violated his Eighth

Amendment rights by fining him $15,000 without determining his

ability to pay. This claim is not cognizable in a § 2255 motion. 

United States v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994).

Issue 11: Sentencing based upon allegedly unforeseeable amount of

cocaine

Sims contends that he was sentenced based upon an amount of

cocaine that was not “reasonably foreseeable” to him. Sims is

barred from raising this claim under § 2255 because it could have

been raised on direct appeal but was not. Vaughn, 955 F.2d at

368.4 

Issue 12: Rule of lenity regarding penalty disparity between

crack cocaine and powder cocaine
15

Sims and James contend that their sentences based on the

penalties for cocaine base were erroneous under the rule of

lenity, because cocaine base draws penalties that are 100 times

more stringent than powder cocaine, although the two are

essentially the same substance. This court has recently rejected

this very argument. See United States v. Flanagan, 87 F.3d 121,

123-24 (5th Cir. 1996). Thus, this contention is without merit.

Issue 13: Ineffective assistance of counsel

Sims and James allege that their respective attorneys

performed ineffectively “throughout their representation.” They

include a litany of alleged inadequacies, such as the attorneys’

alleged failure “to investigate and interview witnesses,” “to

request state preliminary hearing,” “to file a reply brief,” and

“to cross-examine the witnesses at the suppression hearings.” 

They argue that the district court should have held an

evidentiary hearing on these claims.

As set forth in their appellate brief, Sims and James’s

ineffective-assistance claims are conclusional. Courts “must

indulge a strong presumption” that the challenged action of

counsel might be considered sound trial strategy. Strickland,

466 U.S. at 689. Sims and James have the burden to overcome that

presumption. Id. An ineffectiveness claim based on speculation

or conclusional rhetoric will not warrant relief. See Lincecum

v. Collins, 958 F.2d 1271, 1279-80 (5th Cir.), cert. denied, 506
16

U.S. 957 (1992). Sims and James’s ineffective-assistance claims

are little more than a laundry list of supposed misdeeds and

omissions, without explanation of how such misdeeds constituted

deficient performance or how they were prejudiced by them. Thus,

they have not met their burden of overcoming the strong

presumption that their attorneys were competent.

III. CONCLUSION

Thus, as to Sims (No. 95-60462), we VACATE the district

court’s Order Overruling Motion and Dismissing Cause insofar as

it dismissed Sims’s claim in his amended § 2255 motion to vacate

his § 924(c) conviction (ground 12), and we REMAND WITH

INSTRUCTIONS to vacate his § 924(c) conviction (Count 4) and to

resentence him accordingly. As to James (No. 95-60493), we

VACATE the district court’s Order Overruling Motion and

Dismissing Cause insofar as it dismissed James’s claim in her

amended § 2255 motion to vacate her § 924(c) conviction (ground

12), and we REMAND WITH INSTRUCTIONS to vacate her § 924(c)

conviction (Count 4) and to resentence her accordingly. In all

other aspects, the district court’s orders are AFFIRMED.