* 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that this opinion should not be published and is not precedent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. 96-11196

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR GARCIA-GARCIA,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:95-CV-2378-G

- - - - - - - - - -

October 23, 1997

Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges. 

PER CURIAM:*

Hector Garcia-Garcia, federal prisoner #14478-119, moves for

recall of the mandate following the denial of his constructive

motion for a certificate of appealability (COA) to appeal from

the denial of his motion for relief under 28 U.S.C. § 2255. 

Garcia correctly contends that, in light of Lindh v. Murphy, 117

S. Ct. 2059 (1997), the COA requirement of the Antiterrorism and

Effective Death Penalty Act (AEDPA) should not have been applied
No. 96-11196

-2-

to his case. We construe Garcia’s motion as seeking panel review

of a single-judge action pursuant to FED. R. APP. P. 27(c). 

Garcia’s motion for panel review is GRANTED, and the order

denying Garcia a COA is RESCINDED. Garcia moves for dismissal of

his appeal because the government has failed to file an appellate

brief; that motion to dismiss is DENIED. Garcia also moves for a

default judgment against the government; that motion is DENIED. 

No further briefing is necessary for the resolution of

Garcia’s § 2255 appeal and we proceed to consider its merits. See

Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980).

Garcia has not provided a copy of the trial transcript in

support of his contention that counsel was ineffective for

failing to move for a judgment of acquittal on all conspiracy

counts because of a claimed absence of evidence of his

participation in any conspiracy. We do not consider same. 

Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992). Counsel

objected to the recommended adjustments of Garcia’s offense level

for possession of a firearm during the commission of his offense;

for abducting an individual to facilitate an offense or an

escape; and for committing an offense against a vulnerable

victim. Counsel sought a downward adjustment to the offense

level based on Garcia’s role in the offense. Counsel was not

ineffective merely because the district court rejected the

objections and the request for a downward adjustment. 

Specifically, counsel was not ineffective for failing to object
No. 96-11196

-3-

to what was a proper adjustment to the offense level commensurate

with the amount of the ransom demand, nor was counsel ineffective

for failing to limit the total upward adjustment to the offense

level. The guidelines provide no such limitation. Counsel was

not ineffective for failing to argue that Garcia should not have

been given an eight-level adjustment to his offense level for the

amount of the ransom request; the adjustment made was for three

levels. Further, Garcia has not advanced in brief his contention

that his sentence was based on inaccurate information. Brinkmann

v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th

Cir. 1987). Finally, the district court was not required to

conduct an evidentiary hearing on Garcia’s § 2255 motion. United

States v. Drummond, 910 F.2d 285, 285 (5th Cir. 1990).

We conclude that Garcia’s appeal is without arguable merit

and is frivolous. It is therefore dismissed. Howard v. King,

707 F.2d 215, 219-20 (5th Cir. 1983). 

APPEAL DISMISSED. 5th Cir. R. 42.2.