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this opinion should not be published and is not precedent except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

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-50491

Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARRELL LENNARD BATES,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(93-CR-181)

_________________________________________________________________

April 15, 1997

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Before us are two matters raised by Darrell Lennard

Bates, Texas inmate #530855, which contest his guilty-plea

conviction and sentence for filing a federal tax return with false

and fraudulent statements in violation of 26 U.S.C. § 7206. His

earlier notice of appeal relates to the district court’s June 11,

1996 order denying Bates’s motion for modification of the plea
2

agreement underlying his federal conviction or, alternatively,

leave to be released from the binding nature of the plea agreement.

The latter appeal is from the court’s order entered September 16,

1996, which denied Bates’s request for appointment of counsel and

his complaint of ineffective assistance of counsel prior to

conviction and on appeal. Both of these motions essentially seek

federal habeas relief pursuant to U.S.C. § 2255. We deny Bates’s

appeal from the first order as not warranting a certificate of

appealability, and as to the successive “habeas petition,” we deny

permission to pursue it. 

A brief further explanation of our ruling is in order.

Bates pleaded guilty and received a thirty-six month term of

imprisonment, to be served consecutively to his present confinement

in the Texas State prison system for an unrelated conviction. This

court affirmed the federal guilty-plea conviction and sentence on

appeal, United States v. Bates, No. 95-50111 (5th Cir. Sept. 21,

1995) (unpublished). This court also dismissed Bates’s appeal from

the denial of a motion requesting the federal sentence to run

concurrently with his state sentence and for other relief,

characterizing the motion as “innominate.” United States v. Bates,

No. 96-50093 (5th Cir. June 12, 1996) (unpublished).

On June 7, 1996, Bates moved in the district court for

modification of the plea agreement underlying his federal

conviction or for leave to be released from the plea agreement. He

asserted that counsel at trial and on appeal rendered ineffective
3

assistance by erroneously assuming that the district court accepted

his plea agreement. The district court denied the motion, noting

that it had accepted Bates’s guilty-plea, sentenced him, and

entered final judgment in 1995. Bates filed a timely notice of

appeal.

On September 13, 1996, Bates filed a motion entitled

“Defendant Request Appointment of Counsel for Hearing on

Defendant’s Motion Because U.S. District Judge and U.S. Government

Failed to Enforce the Laws Under U.S.C.A. Title 26, U.S.C. Internal

Revenue Code(s) in its Entirety(s) 7206(1) and Others Known and

Unknown in Violations of the Laws and Incorrect Applying Guidelines

and Order.” The district court denied this motion, and Bates again

appealed.

To the extent both of the matters now on appeal seek

relief from Bates’s federal conviction, they are habeas corpus

petitions under § 2255, and we will treat them as such. Although

the district court did not mention it, the appeal of these matters

is governed by the Anti-Terrorism and Effective Death Penalty Act

of 1996 (AEDPA), which became effective April 24, 1996. According

to AEDPA, Bates may not appeal the district court’s June 11 order

without a certificate of appealability, which, however, may be

entered by a circuit judge. 28 U.S.C. § 2253(c) (Supp. 1996), as

amended by AEDPA. A certificate of appealability must indicate

which specific issue or issues present a substantial showing by the

petitioner of the denial of a constitutional right. 28 U.S.C.
4

§ 2253(c)(3) (Supp. 1996). Bates cannot make this showing. To the

extent we understand his complaints, the contention that the

district court never accepted his guilty plea is contrary to the

district court’s explicit statement, as well as the underlying

judgment, and is frivolous. Bates’s ineffective assistance of

counsel claim, predicated on the guilty plea point, is likewise

frivolous. No certificate of appealability is warranted.

Bates’s appeal of the September 16, 1996 order falls

under the rules for successive habeas petitions as enacted by

AEDPA, and requires authorization in this court of appeals for

Bates to proceed in the district court. Bates made no such motion

in this court, and the district court neglected to consider AEDPA’s

applicability. Nonetheless, we may treat Bates’s appeal as a

motion to file a successive habeas petition. On that basis, it is

frivolous for the same reasons that we deny a certificate of

appealability. In addition, Bates cannot satisfy the stringent

standards required by AEDPA for the allowance of second or

successive habeas petitions. See 28 U.S.C. § 2255, as amended

(Supp. 1996).

For the foregoing reasons, we deny certificate of

appealability and dismiss Bates’s appeal of the June 11, 1996 order

of the district court; we also deny Bates’s motion for a successive

habeas application, which derives from his appeal of the court’s

September 16, 1996 order.
5

COA DENIED and appeal DISMISSED; motion for successive

habeas petition DENIED.