*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should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 92-1931

Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CAROL C. PEELER,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:92-CA-847-G & 3:89-CR-028-G)

_________________________________________________________________

(January 19, 1994)

Before DAVIS, JONES and DUHÉ, Circuit Judges.*

PER CURIAM:

Defendant Carol Peeler was the president of Hillcrest

Securities and the vice-president of Hillcrest Equities when the

various Hillcrest entities came under investigation by the Internal

Revenue Service in 1984. Peeler retained Darrell Jordan of the

Hughes & Luce law firm to represent her in the ongoing

investigation and any criminal and/or civil proceedings it might

spawn.
 

1 Whether or not an offer of immunity was actually made is sharply

disputed. In a related malpractice action still pending in state court, Alexander

testified that the offer was clear and unequivocal, while Jordan testified that no

such offer of immunity was made. The magistrate found it unnecessary to decide the

factual disputes in denying defendant's motion for postconviction relief.

2

In December 1985, Bill Alexander, an Assistant U.S.

Attorney assisting the IRS in its investigation, allegedly offered

Jordan transactional immunity for Peeler in exchange for her

cooperation with the investigation.1 Jordan did not inform Peeler

of the offer and -- not surprisingly -- did not contact Alexander

within the time stipulated. As a result, Alexander made the same

offer to another Hillcrest principal who immediately accepted. By

late January 1986, Alexander's offer of immunity to Peeler had been

withdrawn. 

Peeler was indicted on January 31, 1989, and charged with

one count of conspiracy to defraud the United States and seventeen

counts of willfully aiding and assisting in the filing of false

income tax returns. Pursuant to a plea agreement, Peeler pled

guilty in March 1989 to a single count of willfully aiding and

assisting in the filing of a false return. She was sentenced to

probation for five years and fined $100,000.

In April 1992, Peeler moved for postconviction relief

pursuant to 28 U.S.C. §2255 (1988) on the basis that Jordan's

preindictment failure to inform her of the immunity offer deprived

Peeler of her Sixth Amendment right to effective assistance of

counsel. Upon reference from the district court, the magistrate

judge issued a report recommending that the requested relief be

denied. The magistrate judge concluded that Peeler had no right to
 

2 Adversary judicial criminal proceedings may be initiated through formal

charge, preliminary hearing, indictment, information or arraignment. See McNeil v.

Wisconsin, 111 S.Ct. 2204, 2207 (1991).

3

counsel prior to indictment and thus could have no right to

effective assistance prior to that date. The district court

adopted the magistrate judge's findings and conclusions and denied

the motion; from this denial Peeler appeals. Our de novo review

leads us to affirm the district court's denial of postconviction

relief.

It is well-established that where there is no

constitutional right to counsel there can be no deprivation of

effective assistance. Wainwright v. Torna, 455 U.S. 586, 587-88

(1982). The relevant inquiry then becomes whether Peeler had a

Sixth Amendment right to counsel over three years prior to her

indictment. However, a defendant's right to counsel attaches only

once adversary judicial proceedings are initiated against her. See

Kirby v. Illinois, 406 U.S. 682, 688 (1972). The district court

properly concluded that adversary judicial proceedings did not

commence until January 31, 1989, when Peeler was indicted.2 Even

taking as true all of Peeler's allegations, she has failed to state

a claim for deprivation of effective assistance of counsel since

she had no constitutional right to counsel prior to indictment.

On appeal, Peeler also seeks relief on the basis that

Jordan's failure to inform her of the immunity offer constituted a

deprival of due process under the Fifth Amendment. We need not

reach the merits of this independent basis for relief since Peeler

raised this argument for the first time in her objections to the
4

magistrate's report. Because the due process argument was not

properly before the district court, this court will not address it.

See United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992).

For the foregoing reasons, we AFFIRM the district court's

ruling.