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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30785

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RONNIE MERRILL, also known as Manny, also known as Mannie,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:06-CV-7853 

USDC No. 2:02-CR-277-5

Before JOLLY, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Ronnie Merrill appeals the district court’s denial of his 28 U.S.C. § 2255

motion challenging his 2003 guilty-plea conviction for distributing and for

possessing with the intent to distribute heroin and crack cocaine, in violation of

21 U.S.C. § 841, and his resulting 280-month sentence. Although the district

court denied relief, it granted Merrill a certificate of appealability (COA) on the

United States Court of Appeals

Fifth Circuit

F I L E D

August 17, 2009

Charles R. Fulbruge III

Clerk
No. 08-30785

2

issue “whether ineffective assistance of counsel affected the knowing and

voluntary nature of the petitioner’s guilty plea.”

If his brief is liberally construed, Merrill renews the following claims: 1)

counsel was ineffective in inducing his guilty plea by promising that he would

receive a 10-year sentence; 2) counsel was ineffective in failing to question his

mental competency prior to his guilty plea; and 3) counsel was ineffective in

failing to object to the indictment. We do not address the third claim because it

is not encompassed by the district court’s COA grant and because Merrill did not

request an expanded COA in his initial appellate brief. See Miller-El v. Cockrell,

537 U.S. 322, 335-36 (2003); United States v. Kimler, 150 F.3d 429, 430-31 (5th

Cir. 1998) see also United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).

This court reviews the district court’s factual findings for clear error and

legal conclusions de novo. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir.

2008). To prove that his counsel was ineffective, Merrill must show that

counsel’s performance was deficient and that his deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In

connection with his claim that counsel should have questioned his mental

competency to plead guilty, Merrill has failed to make the required showing.

The record shows that Merrill was coherent and responsive at rearraignment,

testifying under oath that he understood the charges against him, the plea

agreement, and the nature of the proceedings, as well as that he had been able

to confer about same with counsel. Moreover, subsequent examination by a

court-appointed psychiatrist revealed that Merrill did not suffer from any mental

defect rendering him incompetent. Merrill conclusionally asserts that counsel

should have realized that he suffered from unspecified “drug related mental

impairments.” However, he does not affirmatively assert, nor has he presented

any evidence to show, that he suffered from any mental impairment which

rendered him unable to consult with his lawyer or to understand the nature of

the proceedings and therefore does not establish that he was in fact incompetent
No. 08-30785

3

to plead guilty. See Drope v. Missouri, 420 U.S. 162, 172 (1975). By failing to

demonstrate that he was mentally incompetent to plead guilty, Merrill fails to

show that counsel was deficient for failing to raise the issue of his competency

prior to his plea, nor can he show any resulting prejudice. See Smith v. Puckett,

907 F.2d 581, 585 n.6 (5th Cir. 1990). Contrary to his assertion, the district

court did not abuse its discretion in failing to hold an evidentiary hearing on the

claim. See United States v. Fields, 565 F.3d 290, 2009 WL 975806, at *7 (5th Cir.

Apr. 13, 2009).

Merrill’s claim that his plea was induced by the promise of a 10-year

sentence is likewise unavailing. In the district court, Merrill did not present any

independent indicia of the likely merit of his allegations because he did not

present affidavits from reliable third parties establishing the terms of the

alleged promise, the time and place of the promise, or the identity of any

eyewitnesses to the promise. See United States v. Cervantes, 132 F.3d 1106,

1110 (5th Cir. 1998). His own affidavit, containing self-serving conclusional

allegations, is insufficient. See id.; see also United States v. Demik, 489 F.3d 644,

646-47 (5th Cir.), cert. denied, 128 S. Ct. 456 (2007). The affidavit executed by

his girlfriend’s grandmother provided no support as it contained no information

regarding counsel’s alleged promise. See Cervantes, 132 F.3d at 1110.

Merrill now moves to expand the record on appeal to include an affidavit

executed by his girlfriend, Tammy Brown, purportedly executed in January

2006. The Government opposes the motion. Merrill provides no explanation for

not having first provided the affidavit to the district court, and we deny therefore

deny the motion to supplement. However, even if the record were expanded to

include the affidavit, it would not provide independent indicia of the likely merit

of Merrill’s claims as it is does not describe with any specificity where or when

the alleged promise by counsel was made, and, more fatally, it does not indicate

that Brown was in fact an eyewitness to any promise made by counsel directly

to Merrill. See Cervantes, 132 F.3d at 1110.
No. 08-30785

4

The evidence presented by Merrill is inconsistent with the bulk of his

conduct, including his presumptively truthful testimony at rearraignment and

the plain terms of the plea agreement, both of which clearly refute the allegation

that counsel promised him a 10-year sentence. Such inconsistency is further

underscored by the fact that Merrill did not raise the claim that his plea was

induced by the promise of a 10-year sentence when he initially moved to

withdraw his plea in the district court. Consequently, Merrill has not shown

that the district court err in rejecting his claim without an evidentiary hearing.

See Cervantes, 132 F.3d at 1110. 

Accordingly, the district court’s judgment is AFFIRMED. The motion to

supplement the record is DENIED.