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should not be published and is not precedent except under the limited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

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-20071

Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM GEORGE LAKE,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-95-5252/CR No. H-93-50

_________________________________________________________________

August 7, 1996

Before JONES, DEMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

William George Lake, # 60517-079, appeals the summary

dismissal of his 28 U.S.C. § 2255 motion to vacate his sentences

for being an alien in possession of a firearm and being a convicted

felon in possession of a firearm. Lake argues his conviction was

obtained in violation of his Fourth, Fifth, and Sixth Amendmenbt
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rights. We have reviewed the record and the briefs and find no

merit in Lake’s motion.

Lake’s claims that the search of his house was unlawful

and that the statement he gave at the Orange County jail was

involuntary were waived by his unconditional plea of guilty. “When

a criminal defendant has solemnly admitted in open court that he is

in fact guilty of the offense with which he is charged, he may not

thereafter raise independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of the

guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973).

As to Lake’s Sixth Amendment claims, to obtain § 2255

relief based on ineffective assistance of counsel, a defendant must

show not only that his attorney’s performance was deficient, but

that the deficiencies prejudiced the defense. United States v.

Smith, 915 F.2d 959, 963 (5th Cir. 1990). Nugent was not deficient

for failing to object to the propriety of the search; such an

objection would have proven futile since, contrary to Lake’s

assertions, the record demonstrates that the search was authorized

by a valid warrant. Even if Lake had shown that Kimborough’s

performance was deficient for allowing the interview with the ATGF

agent and that Nugent’s performance was deficient for not pursuing

the motion to suppress the resulting statement, Lake cannot

demonstrate prejudice because, again, even without the statement,
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there was sufficient evidence of possession of firearms resulting

from the search of the house to convict Lake on the alien-inpossession and the felon-in-possession counts, while the machine

gun possession charge, apparently the main topic of the statement,

was dismissed. Lake cannot demonstrate a reasonable probability

that, but for Kimbrough’s alleged error in allowing the interview

and Nugent’s alleged errors in failing to challenge the validity of

the statement, he would have not pleaded guilty, but would have

gone to trial. See Hill v. Lockhart, 474 U.S. 52, 57-58 (1985).

Lake’s other allegations concerning his attorneys’ actions are

conclusional allegations which do not merit habeas relief. United

States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993).

Lake argues finally that the district court should have

granted him an evidentiary hearing. The opportunity for an

evidentiary hearing in a habeas corpus proceeding is mandatory only

where there is a factual dispute which, if resolved in the

petitioner’s favor, would entitle the petition to relief. East v.

Scott, 55 F.3d 996, 1000, 1002 (1995). Lake has shown no such

genuine issue of fact.

Lake’s motion for leave to file an out-of-time reply

brief is GRANTED. Because Lake’s appeal lacks merit, the interests

of justice do not require the appointment of counsel. The motion

for appointment of counsel is DENIED. The judgment of the district

court is AFFIRMED.
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