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that this opinion should not be published and is not precedent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

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-60034

(Summary Calendar)

_________________

LEVESTER HICKMAN,

Petitioner-Appellant,

versus

STATE OF MISSISSIPPI; MICHAEL C MOORE, State

Attorney General,

Respondents-Appellees.

Appeal from the United States District Court

For the Southern District of Mississippi

(4:96-CV-92-LN)

August 12, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Levester Hickman, a Mississippi prisoner proceeding pro se,

appeals the district court’s denial of his petition for writ of

habeas corpus. We affirm.

I
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At approximately one o’clock in the morning on June 27, 1992,

noises in her house in Neshoba County, Mississippi, awakened Polly

Brumfield. Before Brumfield could complete a 911 telephone call,

Hickman ran across her bed and knocked the phone out of her hand.

Hickman threw Brumfield on the bed, held a knife to her throat, and

told her that he intended to assault her sexually.

In an effort to stall for time, Brumfield spoke to Hickman

about troubles with his girlfriend, offered Hickman a root beer,

went to the bathroom, and requested a cigarette. At one point,

Brumfield attempted to escape through the front door, but Hickman

caught her in the living room. He threw her to the floor,

restrained her, and told her that he would kill her if she tried to

escape again.

Hickman then attempted sexual intercourse with Brumfield.

After his attempt failed, he performed various sexual acts on her.

After approximately thirty minutes, Hickman fell asleep next to

Brumfield. Brumfield then escaped to a neighbor’s house.

Officer Donnie Atkins arrived at the neighbor’s house, heard

Brumfield’s version of the events, and went to Brumfield’s

residence. Officer Atkins found Hickman asleep on the floor in his

underwear. Officer Atkins arrested Hickman, handcuffed him, and

placed him in the patrol car. Officer Atkins then returned to the

Brumfield residence to continue his investigation. When he

returned to his patrol car, Hickman had escaped. Police recaptured

Hickman later the same day. In a statement given that day,
1 We find no indication that Hickman filed a petition for

habeas relief in Mississippi state court. In its district court

answer to Hickman’s federal habeas petition, the state asserts that

Hickman exhausted his state remedies with respect to his

ineffective assistance of counsel claim and “that any further

return to state courts on this issue would be futile.” Thus, the

state has expressly waived the exhaustion requirement. See 28

U.S.C. § 2254(b)(3), as amended by Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(1996) (“A State shall not be deemed to have waived the exhaustion

requirement or be estopped from reliance upon the requirement

unless the State, through counsel, expressly waives the

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Hickman’s account of the events prior to his arrest substantially

coincided with Brumfield’s account. 

A Neshoba county grand jury indicted Hickman in a multiple

count indictment on July 9, 1992; trial commenced on July 14, 1992.

Hickman admitted at trial to breaking into Brumfield’s residence.

He claimed, however, that he entered Brumfield’s house to ask her

to kill him. He admitted to touching her, but denied that he

attempted to rape her. He also denied threatening Brumfield or

physically restraining her. 

The jury convicted Hickman of burglary of an inhabited

dwelling, attempted rape, sexual battery and escape. The trial

court sentenced Hickman to eighteen years for sexual battery,

twelve consecutive years for burglary of an inhabited dwelling,

five concurrent years for attempted rape, and one concurrent year

for felonious escape. A Mississippi appellate court affirmed

Hickman’s conviction and sentence on direct appeal.

On July 11, 1996, Hickman filed a request for federal habeas

corpus relief pursuant to 28 U.S.C. § 2254.1 A magistrate judge
requirement.”). Moreover, Hickman’s apparent failure to exhaust

state remedies does not bar our consideration of the merits of his

federal habeas petition. “An application for a writ of habeas

corpus may be denied on the merits, notwithstanding the failure of

the applicant to exhaust the remedies available in the courts of

the State.” 28 U.S.C. § 2254(b)(2), as amended by Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214 (1996).

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recommended dismissal of Hickman’s petition with prejudice. The

district court adopted the magistrate judge’s recommendation,

denying Hickman’s petition for writ of habeas corpus and dismissing

his petition with prejudice. The district court granted Hickman a

certificate of appealability (“COA”) on the issues of whether

Hickman’s trial counsel and appellate counsel rendered ineffective

assistance. Hickman appeals.

II

As a threshold matter, we must determine the issues we will

consider. Hickman raises on appeal the two issues for which the

district court granted a COA, as well as several other issues.

Specifically, he alleges violation of his rights under the double

jeopardy clause and under Miranda v. Arizona, 384 U.S. 436, 86 S.

Ct. 1602, 16 L. Ed. 2d 694 (1962). He also asserts denial of a

fair trial because the jury did not include any minorities and

contends that the indictment contained an improper escape charge.

Hickman did not raise these latter four issues in his original

habeas petition in district court. Therefore, we will not consider
2 The court appointed new counsel to represent Hickman on

appeal.

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them on appeal. See Johnson v. Puckett, 930 F.2d 445, 448 (5th

Cir.) (“We have repeatedly held that a contention not raised by a

habeas petitioner in the district court cannot be considered for

the first time on appeal from that court’s denial of habeas

relief.”), cert. denied, 502 U.S. 890, 112 S. Ct. 252, 116 L. Ed.

2d 206 (1991); United States v. Smith, 915 F.2d 959, 964 (5th Cir.

1990) (per curiam) (“If a defendant in habeas proceedings did not

raise his claims before the district court, we do not consider them

on appeal.”).

Thus, we turn to Hickman’s ineffective assistance of counsel

claims. First, he contends that his trial counsel’s performance

was deficient because the attorney failed to use a Choctaw

interpreter when interviewing Hickman, failed to object to the

multiple count indictment, failed to secure affordable bail, and

failed to object to the jury composition. He also appears to argue

that because his trial counsel was later disbarred for failing to

file appellate briefs in several cases (including Hickman’s), his

counsel’s performance at trial in Hickman’s case was necessarily

ineffective.2

To establish ineffective assistance of counsel, Hickman must

demonstrate both deficient performance by his trial counsel and

prejudice resulting from that deficiency. Strickland v.
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Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d

674 (1984). To show that his trial counsel’s performance was

deficient, Hickman must show that his attorney “made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id., 104 S. Ct.

at 2064. To demonstrate prejudice from his trial counsel’s

deficient performance, Hickman must show that his attorney’s errors

“were so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., 104 S. Ct. at 2064. Failure

to establish either prong defeats the claim. Id., 104 S. Ct. at

2064.

Even assuming deficient performance by his trial counsel,

Hickman cannot satisfy the exacting Strickland standard because he

cannot demonstrate prejudice as a result of his attorney’s

performance. None of the errors Hickman alleges demonstrates “that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedings would have

been different,” id. at 694, 104 S. Ct. at 2068, or that the result

of the trial is unreliable. Id. at 687, 104 S. Ct. at 2064. The

evidence against Hickman was extensive, and included his own trial

testimony that he used a ladder to enter Brumfield’s home, that he

attempted intercourse with her, and that he performed a sex act on

her. In addition, Brumfield testified to the events; her neighbor

and a police officer corroborated her testimony. Nor does the fact
3 We note with respect to Hickman’s claim that his trial

attorney failed to object to the jury composition that Hickman does

not argue that the prosecutor improperly excluded minorities from

the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.

Ct. 1712, 90 L. Ed. 2d 69 (1986). Rather, he appears to claim that

the jury was not fairly representative of the community because it

allegedly did not contain African-Americans and Native Americans.

However, he provides no argument regarding the composition of the

venire panel, the proportion of African-Americans and Native

Americans in the community or the jury selection procedure used by

the state court. See Duren v. Missouri, 439 U.S. 357, 364, 99 S.

Ct. 664, 668, 58 L. Ed. 2d 579 (1979) (“In order to establish a

prima facie violation of the fair-cross-section requirement, the

defendant must show (1) that the group alleged to be excluded is a

‘distinctive’ group in the community; (2) that the representation

of this group in venires from which juries are selected is not fair

and reasonable in relation to the number of such persons in the

community; and (3) that this underrepresentation is due to

systematic exclusion of the group in the jury-selection process.”).

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that Hickman’s trial counsel was later disbarred, by itself,

demonstrate that the outcome of Hickman’s trial would have been

different but for counsel’s alleged errors. See id. at 691, 104 S.

Ct. at 2067 (“An error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the judgment.”).

In sum, Hickman has not established that his trial counsel rendered

him constitutionally defective assistance.3

Hickman states without elaboration that his appellate counsel

denied him effective assistance by failing to obtain “enough

evidence” in Hickman’s favor. This bare allegation does not

preserve this claim for appeal. See Price v. Digital Equip. Corp.,

846 F.2d 1026, 1028 (5th Cir. 1988) (“Although we liberally

construe the briefs of pro se appellants, we also require that
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arguments must be briefed to be preserved.”) (citations omitted);

Fed. R. App. P. 28(a)(6) (“The argument must contain the

contentions of the appellant on the issues presented, and the

reasons therefor, with citations to the authorities, statutes, and

parts of the record relied on.”); cf. Yohey v. Collins, 985 F.2d

222, 224-25 (5th Cir. 1993) (holding that pro se appellant abandons

arguments by failing to argue them in body of brief).

Hickman also appears to assert that his appellate counsel did

not adequately argue his ineffective assistance of trial counsel

claim on direct appeal because appellate counsel did not mention

that Hickman’s trial attorney had sought removal from the case

prior to trial. Review of the brief submitted by appellate counsel

on direct appeal, however, reveals that counsel specifically argued

that Hickman received constitutionally defective assistance from

his trial attorney, noting examples of alleged ineffective

assistance. The fact that counsel did not specifically note

Hickman’s trial attorney’s request for removal prior to trial does

not warrant a finding of ineffective assistance of appellate

counsel. See Sharp v. Puckett, 930 F.2d 450, 452 (5th Cir. 1991)

(stating that counsel is not ineffective by failing to raise on

appeal issues requested by defendant or by failing to raise “every

possible point on appeal”).

Hence, for the foregoing reasons, we AFFIRM the district

court’s denial of Hickman’s petition for habeas relief. We GRANT
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Hickman’s motion to file his reply brief out of time. We DENY

Hickman’s motion “to have plaintiff examined of individual

comprehensive,” motion for an appeal bond, and motion for transfer

to another correctional facility.

AFFIRMED. MOTION TO FILE REPLY BRIEF OUT OF TIME GRANTED.

ALL OTHER PENDING MOTIONS DENIED.