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that this opinion should not be published and is not precedent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

** The district court granted relief on Tolliver’s

contention that a conviction for use of a firearm in relation to

a drug-trafficking crime violated Bailey v. United States, 116 S.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-11064

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALVIN TOLLIVER,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:95-CV-835-E

USDC No. 4:96-CV-099-E

USDC No. 4:88-CR-057-E

- - - - - - - - - -

December 3, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Alvin Tolliver seeks a certificate of appealability (COA) to

appeal from the partial denial of three consolidated 28 U.S.C.

§ 2255 motions in which Tolliver challenged his conviction and

sentence for possession with intent to distribute heroin and

maintenance of a place for the manufacture of narcotics.**
No. 96-11064

-2-

Ct. 501 (1995).

Tolliver’s § 2255 motions were filed before the effective date of

the Antiterrorism and Effective Death Penalty Act (AEDPA); he

therefore does not need a COA to proceed on appeal. His COA

motion therefore is DENIED as unnecessary.

Tolliver argues that trial counsel merely feigned

representation of him because counsel was intimidated by the

prosecutor’s implicit threat to name counsel as a conspirator and

therefore advised Tolliver to plead guilty, failed to move for

suppression of evidence, and failed to present evidence on

Tolliver’s behalf. Tolliver argued in the district court only

that trial counsel advised him to plead guilty and feigned the

defense because of intimidation; he did not argue specifically

that counsel was ineffective for failing to seek suppression of

evidence of failing to present evidence on his behalf.

Tolliver’s general contention that counsel feigned a defense

is conclusional and does not allege any specific prejudice. 

Tolliver’s conclusional allegations are insufficient to give rise

to any § 2255 issues. United States v. Pineda, 988 F.2d 22, 23

(5th Cir. 1993). Tolliver’s remaining ineffective-assistance

contentions give rise to factual questions that this court will

not resolve on appeal. Tolliver has not shown plain error

regarding those contentions. Robertson v. Plano City of Texas,

70 F.3d 21, 23 (5th Cir. 1995).

Tolliver contends that the attribution to him of more drugs
No. 96-11064

-3-

than the quantity with which he was arrested violated the Eighth

Amendment. Tolliver could have raised his Eighth Amendment

contention in a direct appeal following resentencing but chose

not to do so. Tolliver is procedurally barred from raising his

Eighth Amendment issue. United States v. Drobny, 955 F.2d 990,

994-95 (5th Cir. 1992).

 Tolliver’s appeal is frivolous, Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983), and therefore is dismissed. Counsel

is admonished that he has a duty not to pursue frivolous appeals. 

United States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994).

APPEAL DISMISSED. 5TH CIR. R. 42.2.