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this opinion should not be published and is not precedent except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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-40450

Summary Calendar

__________________

ALMA SHERMAN,

 Petitioner-Appellant,

versus

TDC DIRECTOR, Texas Department

of Criminal Justice,

 Respondent-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:94-CV-704

- - - - - - - - - -

January 8, 1996

Before WIENER, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

Texas prisoner Alma Sherman appeals the dismissal of her

petition for federal habeas corpus relief. Sherman contends that

police failed to administer Miranda warnings to her and violated

the Fourth Amendment by conducting a warrantless search; that her

state-court indictment was defective; that her bail conditions

were excessive; that she received ineffective assistance of

counsel at trial and on appeal; that the prosecutor engaged in

reversible misconduct; that the evidence was insufficient to
No. 95-40450

-2-

support her conviction; that her sentence violated equal

protection; and that the state-court judge responded erroneously

to a jury inquiry at sentencing. Additionally, Sherman moves for

reduction of her sentence pursuant to FED. R. CRIM. P. 35(b), for

default judgment against the respondent, and for appointment of

counsel to represent her on appeal.

Sherman raised her contentions regarding Miranda, the Fourth

Amendment, her indictment, and her bail conditions in her

response to the respondent's answer in the district court; the

district court did not consider those contentions. We find no

reversible error on those contentions, however. First, Sherman

does not allege that she made any inculpatory statements before

she actually received her Miranda warnings, requiring exclusion

of any evidence. See United States v. Bengivenga, 845 F.2d 593,

600 (5th Cir.)(en banc), cert. denied, 488 U.S. 924 (1988). 

Second, Sherman has not shown that she lacked a full and fair

opportunity to litigate her Fourth Amendment contention in state

court. Davis v. Blackburn, 803 F.2d 1371, 1372 (5th Cir. 1986). 

Third, the Texas Court of Criminal Appeals implicitly held that

the state trial court had jurisdiction and that the indictment

was sufficient, precluding this court from examining the

sufficiency of Sherman's indictment. Yohey v. Collins, 985 F.2d

222, 229 (5th Cir. 1993); Alexander v. McCotter, 775 F.2d 595,

598-99 & n.1 (5th Cir. 1985). Fourth, Sherman's excessive bail

contention was mooted by her conviction. Murphy v. Hunt, 455

U.S. 478, 481 (1982).

Sherman has failed to brief several of her ineffective-
No. 95-40450

-3-

assistance contentions for appeal and has abandoned those

contentions. See Grant v. Cuellar, 59 F.3d 523, 525 (5th Cir.

1995). Sherman raises two other ineffective-assistance

contentions for the first time on appeal. Resolution of those

contentions would require us to make factual determinations; we

will not make such determinations. Varnado v. Lynaugh, 920 F.2d

320, 321 (5th Cir. 1991). We have examined the remainder of

Sherman's ineffective-assistance contentions on their merits and

hold that Sherman did not receive ineffective assistance of

counsel at trial or on appeal from any of the three attorneys who

were appointed to represent her.

The prosecutor's remarks at trial did not violate Sherman's

right to a fair trial. Sherman was charged with a drug offense;

the prosecutor could indicate to the jury that he wished the jury

to infer that Sherman was a drug dealer. Foy v. Donnelly, 959

F.2d 1307, 1317-18 (5th Cir. 1992). Additionally, no manifest

injustice will result because we decline to consider Sherman's

contention raised for the first time on appeal that the

prosecutor violated her right to a fair trial by referring to the

prosecution's failure to present evidence of any criminal record;

defense counsel opened the door to the prosecutor's remark. 

Varnado, 920 F.2d at 321.

The evidence was sufficient to support Sherman's conviction. 

White testified that Sherman sold him crack cocaine. White's

testimony was corroborated by Hall. See Young v. Guste, 849 F.2d

970, 972 (5th Cir. 1988).

Sherman has not shown that her sentence violated the Equal
No. 95-40450

-4-

Protection Clause. Disparate impact alone is insufficient to

show a violation of equal protection. United States v. Galloway,

951 F.2d 64, 65 (5th Cir. 1992). Sherman's allegation that the

disparate sentenced in various drug cases were based on racial

animus is conclusional and is insufficient to raise a

constitutional issue. Ross v. Estelle, 694 F.2d 1008, 1012 (5th

Cir. 1983).

The state-court judge properly instructed the jury about

sentencing options for Sherman. The state court need not have

responded to the jury's request to clarify the difference between

life imprisonment and 99 years' imprisonment.

Regarding Sherman's motions, the Federal Rules of Criminal

Procedure are inapplicable to habeas corpus cases. Sherman's

motion for a reduction of her sentence is DENIED. Additionally,

her motion for a default judgment against the respondent is

DENIED. Finally, the interests of justice do not require

appointment of counsel for Sherman. Schwander v. Blackburn, 750

F.2d 494, 502 (5th Cir. 1985). Her motion for appointment of

counsel is DENIED.

AFFIRMED.