*

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the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. 97-30766

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus

S. PATRICK PHILLIPS,

Defendant-Appellant,

________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(97-CV-791)

_________________________________________

June 23, 2000

Before KING, Chief Judge, and REAVLEY and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:*

This case involves S. Patrick Phillip’s challenge to the district court’s denial of hisrequest for

relief under 28 U.S.C. § 2255. For the reasons assigned below, we affirm the district court’s ruling.

FACTUAL AND PROCEDURAL BACKGROUND

S. Patrick Phillips (“Phillips”) was indicted along with four other co-defendants in a fivecount indictment for conspiracyto manufacturemethamphetamine and possessionofa listed chemical
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with intent to manufacture methamphetamine. The jury convicted “Phillips” on all counts. Phillips

was granted a new trial on one count of conspiracy to manufacture methamphetamine and one count

of possession of phenylacetic acid with the intent to manufacture methamphetamine. Phillips was

convicted of both counts at his second trial.

Phillips was sentenced to 235 months imprisonment on count one and 120 months of

imprisonment on count two, with the sentences to be served concurrently. Phillips petitioned to

modify his sentence pursuant to 18 U.S.C. § 3582(c)(2)for the possession of phenylacetic acid with

the intent to manufacture methamphetamine conviction. The district court denied the motion, and

the ruling was affirmed on direct appeal.

Subsequently, Phillips moved to vacate, set aside, or correct his sentence pursuant to 28

U.S.C. § 2255 (“ § 2255"). Phillips claimed that his sentence was cruel and unusual punishment, that

his counsel rendered ineffective assistance of counsel, and that collateral estoppel barred his

prosecution. The district court denied the § 2255 motion and Phillips filed a notice of appeal.

Phillips applied for a Certificate of Appealablity (“COA”) pursuant to 28 U.S.C. § 2253(c)(1)(B).

In addition to the claims raised in his § 2255 petition, Phillips claimed that the prosecutor engaged

in misconduct by making an improper closing argument and that his trial counsel was ineffective for

failing to object to the prosecutor’s improper argument. A member of this court issued a one-judge

order which denied a COA on the claims in his § 2255 petition. However, the order denied the two

additional claims without prejudice and granted Phillips 60 days to resubmit a “fully supported

renewed COA motion” on the new claims. Phillips subsequently resubmitted a COA motion on the

prosecutorial misconduct and the ineffective assistance of counsel claims, and a one-judge order
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granted the motion notwithstanding that Phillips did not raise these specific claims before the district

court in his § 2255 petition.

DISCUSSION

The government arguesthat this court is without jurisdiction to review the merits of Phillip’s

claims relating to the prosecutor’s alleged improper argument and ineffective assistance of counsel

because Phillips did not raise them before the district court. Phillips, on the other hand maintains that

the court has jurisdiction to reach the merits of his claims because the one-judge order granting his

application for a COA expressly includes the claims he raises before us. 

Generally, claims that are not raised in a § 2255 habeas petition before the district court are

not reviewable on appeal. See, e.g. United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998).

Our review of the record shows that Phillips did not raise the prosecutorial misconduct claim

pertaining to the prosecutor’s alleged improper closing argument in his § 2255 habeas petition.

Although a member of this court issued a one-judge order granting a COA on this claim, it is unclear

whether the fullrecord was before the court at the time the order wasissued. Nonetheless, this claim

is not properly before us because Phillipsfailed to present it to the district court in his § 2255 petition.

Under 28 U.S.C. § 2253, the final order in a § 2255 habeas proceeding before the district court shall

be subject to review on appeal. Because the prosecutorial misconduct claim was not presented to the

district court first, the claim was not part ofthe district court’sfinal order. As such, the prosecutorial

misconduct claim is not properly before the court for review. See United States v. Madkins, 14 F.3d

277, 279 (5th Cir. 1994).

Regarding Phillips’s claim of ineffective assistance of counsel, Phillips argued in his § 2255

habeas petition that “trial counsel failed to make appropriate objection, and establish the necessary
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 Although Phillips included his ineffective assistance of trial counsel claim in his § 2255

petition under the heading “Appellate Ineffective Assistance of Counsel,” we nonetheless construe

his complaint regarding counsel’s failure to object as a claim of ineffective assistance of counsel at

trial.

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record[.]” Although Phillips did notspecificallyrefer to counsel’sfailure to object to the prosecutor’s

alleged improper closing argument in his motion or in his supporting memorandum, we nonetheless

liberally construe his pro se pleadings to include this issue. We therefore reach the merits of his

ineffective assistance of counsel claim. See Torres, 163 F.3d at 910 n.5; United States v. Gobert, 139

F.3d 436, 437 n.5 (5th Cir. 1998); see also Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir. 1997)(all

doubts about whether to grant a COA are to be resolved in favor of the habeas petitioner).1

Phillips claims that his trial counsel rendered ineffective assistance because counsel failed to

object to the prosecutor’s alleged improper closing argument. Phillips alleges that during the closing

argument, the prosecutor improperly made a “guilt by association” argument by referring to

convictions of co-conspirators who did not testify at trial. Thus, Phillips asserts that counsel’s failure

to object to these references amounted to ineffective assistance of counsel.

To assert a successful ineffectiveness of counsel claim, petitioner isrequired to establish both

(1) constitutionally deficient performance by his counsel and (2) actual prejudice as a result of his

counsel's deficient performance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064,

80 L.Ed.2d 674 (1984). The failure to prove either deficient performance or actual prejudice

forecloses an ineffective assistance claim. In order to satisfy the first prong of the Strickland analysis,

Phillips must prove that his counsel's performance "fell below an objective standard of

reasonableness." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The second prong of Strickland

issatisfied if "there is a reasonable probability that, but for counsel's unprofessional errors, the result
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of the proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068; see also Lockhart v.

Fretwell, 506 U.S. 364, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (stating that the prejudice prong

of Strickland "focuses on the question whether counsel's deficient performance rendersthe result of

the trialunreliable or the proceeding fundamentally unfair"). The determination whether counsel was

constitutionally ineffective is a mixed question of law and fact that this court reviews de novo. See

Green v. Johnson, 160 F.3d 1029, 1035 (5th Cir. 1998).

Regarding Strickland’s first prong, there is a strong presumption that the performance of

counsel “falls within the wide range of reasonable professional assistance.” United States v. Samuel,

59 F.3d 526, 528 (5th Cir. 1995). Thus, Phillips must overcome the presumption, that under the

circumstances, “the challenged action ‘might be considered sound trial strategy.’” Strickland, 466

U.S. at 689, 104 S.Ct. 2052. The reasonableness prong of Strickland involves a case-by-case inquiry.

Therefore, acts and omissions that may be deemed unreasonable in one case may be brilliant trial

strategy in another case.

In the instant case, Phillips does not overcome the presumption that counsel’sfailure to object

to the alleged improper references made by the prosecutor during closing argument was part of

counsel’strialstrategy. Conceivably, counsel may have opted not to object in order to avoid drawing

the jury’s attention to the prosecutor’sremarks. Cf. Walker v. United States, 433 F.2d 306, 307 (5th

Cir. 1970)(discussing how objecting to prosecutor’s alleged improper remarks during closing may

have been more prejudicial than the remarks from the prosecutor). This point is illustrated by

appellate counsel’s acknowledgment during oral argument that he was not sure from a strategical

point of view whether he would have objected when the prosecutor referred to the conviction of one
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of the non-testifying co-conspirators during closing argument. As such, Phillips does not meet

Strickland’s first prong.

BecauseStrickland’stwo prong test is conjunctive,failure to meet the “reasonableness” prong

pretermits an inquiry into the “prejudice” prong. Notwithstanding, Phillips does not show that

counsel’sfailure to object deprived him of a fundamentally fair trial. See Carter v. Johnson, 110 F.3d

1098, 1110 (5th Cir. 1997).

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

AFFIRMED.