*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the Court has determined that this opinion should not be published.

 

1

28 U.S.C. § 2255.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-20665

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS RUIZ,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(CR-H-91-27; 94-CV-2391)

November 2, 1995

Before POLITZ, Chief Judge, JOLLY and DeMOSS, Circuit Judges.

POLITZ, Chief Judge:*

Jose Luis Ruiz appealsthe district court’ssummary denial of habeas corpusrelief1on

his motions to vacate, set aside, and correct sentence. Finding no abuse of discretion, we

affirm.
 

2United States v. Ruiz, No. 91-2917 (5th Cir. Aug. 3, 1992).

 

3Strickland v. Washington, 466 U.S. 668 (1984).

2

Background

Ruiz was convicted by a jury of conspiracy to possess in excess of five kilograms of

cocaine with the intent to distribute and for aiding and abetting its distribution, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 and 18 U.S.C. § 2. He was sentenced to 292

months of imprisonment,five years ofsupervised release, a $10,000 fine, and a $100 special

assessment. We affirmed the conviction on direct appeal.2

Ruiz then filed the instant 28 U.S.C. § 2255motion which the district courtsummarily

denied without written reasons and without conducting an evidentiary hearing. Ruiz

complains that his counsel was ineffective, that the government’s conduct in this case was

improper, and that the district court erred in summarily denying his section 2255 motion

without conducting an evidentiary hearing.

Analysis

Ineffective Assistance of Counsel

Ruiz first contends that his counsel was ineffective for failing to: (1) move for an

independent chemical analysis of the seized substance for use in sentencing; (2) challenge

on appeal the conversion of the cocaine base to crack cocaine; (3) object to the imposition

of a fine; (4) challenge on appeal the amount of drugs; and (5) appeal the district court’s

refusal to grant a section 3B1.2 reduction for his alleged minor role in the offense.

To prevail on a claim of ineffective assistance of counsel, a defendant mustshow that

his counsel’s performance was deficient in that it fell below an objective standard of

reasonableness and that the deficient performance prejudiced his defense.3 To show

Strickland prejudice, a defendant must demonstrate that counsel’s errors were so serious as
 

4Lockhart v. Fretwell,113 S.Ct. 838 (1993).

 

5Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).

 

6

Id. at 89 n.4.

 

7

In particular, the DEA lab results reflect that there were 35,843.7 grams of cocaine

hydrochloride and 4835.2 grams of cocaine base.

 

8United States v. Segler, 37 F.3d 1131 (5th Cir. 1994).

3

to render the result of the trial unreliable or the proceeding fundamentally unfair.4 Further,

in a sentencing context we have held that “in deciding such an ineffectiveness claim, a court

must determine whether there is a reasonable probability that but for trial counsel’s errors

the defendant’s non-capital sentence would have been significantly less.”5 The court noted

“one foreseeable exception to this requirement would be when a deficiency by counsel

resulted in a specific, demonstrable enhancement in sentencing -- such as an automatic

increase for a ‘career’ offender or an enhancement for use of a handgun during a felony --

which would have not occurred but for counsel’s error.”6

Ruiz contends that his counsel was ineffective for failing to secure an independent

chemical analysis. The chemist attested at trial that he analyzed the seized substance and

determined that it was cocaine.7 Ruiz makes no showing to the contrary, nor does he allege

that an independent analysis was available and would have reached a different result. This

complaint is without merit as is the complaint about the conversion of cocaine to the crack

cocaine equivalent which was done by the probation officer using the conversion tables in

the guidelines.

The claimof ineffectivenessfor failure to object to the fine assessed is not cognizable

in a section 2255 review.8

The claim that counsel was ineffective for failing to challenge on appeal the amount
 

9Varnado v. Lynaugh, 920 F.2d 320 (5th Cir. 1991).

 

10United States v. Plewniak, 947 F.2d 1284, 1290 (5th Cir. 1991), cert. denied, 502 U.S.

1120 (1992).

 

11United States v. Bartholomew, 974 F.2d 39 (5th Cir. 1992).

4

of drugs attributable to Ruiz’s offense is without merit. Ruiz was convicted of a conspiracy.

He is accountable for the foreseeable actions of his co-conspirators. Further, the record

reflects that he played an integral role in the conspiracy and appeared to be aware of its

scope. The cocaine seized in the Houston apartment appropriately was included in the

relevant conduct assessment.

This observation also appliesto the complaint that counsel should have appealed the

trial court’s refusal to grant an offense level reduction because Ruiz played a minor role in

the offense. The record does not support that assertion.

Improper Government Conduct

Ruiz maintains that the government was guilty of misconduct in the handling ofhis

case by: (1) threatening to withdraw the plea agreements of certain witnesses if they testified

in favor of Ruiz; (2) concealing exculpatory evidence; and (3) the corrupt actions of the

prosecutor and defense counsel designed to deprive him of justice. These issues were not

raised in the trial court and may not be considered on appeal.9

Summary Denial of Section 2255 Motion

Finally, we address Ruiz’s contention that the district court erred in denying this

section 2255motion without conductingan evidentiary hearing. “Section 2255 provides that

a hearing is required ‘unless the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief.’”10 We review such determinations for abuse

of discretion.11 We find that the district court did not abuse its discretion in denying Ruiz’s
5

motion without holding an evidentiary hearing because the motion, files, and record amply

demonstrate that Ruiz is not entitled to relief.

AFFIRMED.