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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-41024

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARCO GARZA, SR.,

Defendant Appellant.

No. 97-41069

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARCO GARZA, JR.,

Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of Texas

(M-96-CV-17 & M-93-CR-54-3)

March 9, 1999

Before DAVIS, STEWART and PARKER, Circuit Judges.
 

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this opinion should not be published and is not precedent except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

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PER CURIAM:*

Marco Garza, Sr., (“Senior”) federal prisoner # 64241-079, and

Marco Garza, Jr., (“Junior”) federal prisoner # 39697-079, father

and son (collectively “the Garzas”), appeal the denial of their 28

U.S.C. § 2255 motions. We affirm.

FACTS AND PROCEDURAL HISTORY

The Garzas were charged with seven counts of money laundering

in violation of 18 U.S.C. § 1956(a)(1)(B)(i), one count of

conspiracy to launder money, four counts of structuring a

transaction in violation of 31 U.S.C. § 5324, and one conspiracy

count embracing the structuring transactions. After a jury trial,

Senior was found guilty on all counts. Junior was found guilty of

the money laundering and conspiracy to launder money charges but

was acquitted on the other counts. 

This court affirmed the Garzas' convictions on the money

laundering counts and the conspiracy to launder money count and

reversed Senior's convictions for structuring transactions and

conspiracy to structure transactions. See United States v. Garza,

42 F.3d 251, 254 (5th Cir. 1994). The reversed counts were later

dismissed on a motion by the Government.

On February 7, 1996, Senior filed a 28 U.S.C. § 2255 motion

asserting sixteen grounds for relief. The district court denied

the § 2255 motion but granted Senior a certificate of probable

cause (CPC) on his contention “that the Court erred by failing to
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instruct the jury that willfulness was an element of the money

laundering offense because the government included the term

'willful' in the indictment.” On April 18, 1997, Junior filed a §

2255 motion. The district court denied relief but granted Junior

a certificate of appealability (COA) on the same issue. We then

consolidated the Garzas' appeals.

SCOPE OF APPEAL

The threshold issue concerns the scope of appellate review.

Senior filed his § 2255 motion before the April 24, 1996 effective

date of the Antiterrorism and Effective Death Penalty Act (AEDPA).

Therefore, the AEDPA is not applicable, and he was not required to

obtain a COA to proceed on appeal. See Lindh v. Murphy, 117 S. Ct.

2059, 2068 (1997). Because appeals in § 2255 cases were of right

prior to the AEDPA, Senior likewise needs no CPC. See United

States v. Rocha, 109 F.3d 225, 228 (5th Cir. 1997). Accordingly,

we review all of the issues raised in Senior's brief.

Junior is required to obtain a COA pursuant to the AEDPA

because he did not file his § 2255 motion until April 18, 1997.

Appellate review as to Junior is therefore limited to the

constructive amendment of indictment issue specified in the grant

of COA. See Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir.

1997). 

ANALYSIS

The Garzas contend that the omission of the term “willfully”

from the jury instructions constitutes an impermissible amendment

of the indictment. Although defense counsel objected to the jury
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charge on this basis at trial, the Garzas did not raise the issue

on direct appeal. In addition to disputing the merits of the

Garzas' constructive amendment claim, the Government contends that

the issue is procedurally barred, and that defense counsels'

failure to raise the issue on direct appeal does not constitute

ineffective assistance of counsel. The government invoked the

procedural bar in district court. See United States v. Drobney,

955 F.2d 990, 994-95 (5th Cir. 1995).

“Relief under . . . § 2255 is reserved for transgressions of

constitutional rights and for a narrow range of injuries that could

not have been raised on direct appeal and would, if condoned,

result in a complete miscarriage of justice.” United States v.

Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). A defendant who raises

a constitutional or jurisdictional issue for the first time on

collateral review must show “both 'cause' for his procedural

default and 'actual prejudice' resulting from the error.” United

States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991)(quoting United

States v. Frady, 456 U.S. 152, 158 (1982)). “Ineffective

assistance of counsel satisfies the cause and prejudice standard.”

United States v. Patten, 40 F.3d 774, 776 (5th Cir. 1994). 

The Garzas contend that their attorneys were ineffective for

failing to raise the constructive-amendment-of-indictment issue on

direct appeal. To prevail on an ineffectiveness-of-counsel claim,

a defendant must show that his counsel's performance was deficient

and that he was prejudiced by that deficient performance.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Assuming,
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without deciding, that the Garzas' constructive amendment argument

has merit, they cannot demonstrate that their appellate counsel

were ineffective for failing to assert every colorable issue on

appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). There is no

Fifth Circuit jurisprudence dispositive of the constructive

amendment question presented. We also note that the Eleventh

Circuit case cited as primary support for the argument, United

States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), was not

decided at the time of the direct appeal in this case. We conclude

both Senior and Junior were afforded counsel whose conduct on

direct appeal fell well within the range of adequate professional

assistance. See Strickland, 104 S. Ct. at 2065.

CONCLUSION

Having reviewed the record, we find no merit in Senior's other

claims of ineffective assistance of counsel, in his assertion that

18 U.S.C. § 1956(a)(1)(B)(i) is unconstitutionally vague, his

attack on the wording of the co-conspirator liability jury charge,

or his allegations of prosecutorial misconduct and insufficiency of

the evidence.

For the foregoing reasons, we AFFIRM the denial of § 2255

relief as to both Marco Garza, Sr. and Marco Garza, Jr.

AFFIRMED.