Opinion
CRIMINAL CASE NO. 4:99-CR-044-M, (CIVIL ACTION NO. 4:02-CV-058-M)
July 10, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a motion to vacate by a federal prisoner pursuant to 28 U.S.C. § 2255.
B. PARTIES
The Movant, Daniel Kent Yantis, Reg. No. 33391-077, is a federal prisoner incarcerated at the Federal Correctional Institution located in Coleman, Florida. The Respondent is the United States of America.
C. FACTUAL AND PROCEDURAL HISTORY
On July 2, 1998, Richard Grimmett, a police sergeant with the Arlington Police Department, and an arrest team went to an apartment in Arlington, Texas to execute warrants for Yantis for credit card abuse and for a probation violation in a previous arson case. (2 R. on Appeal 3-6, 169-70.) Grimmett had information that Yantis would be armed and might resist arrest. (Id. at 5-6, 173.) Grimmett called the apartment and, after a woman answered the phone, identified himself as a police officer and asked to speak to Yantis. (Id. at 7-8, 170.) Grimmett told Yantis about the warrants and told him to come out of the apartment. (Id. at 8, 171.) A woman, later identified as Colleen Sargent, left the apartment through the sliding glass doors on the patio and began walking toward Grimmett. (Id. at 9, 172.) Yantis then appeared on the patio. (Id.) In response to Grimmetts orders for the pair to stop, Sargent stopped, but Yantis did not. (Id. at 9, 173.) Yantis went to a gym bag that was on the patio, unzipped it to rummage through it, and began to walk toward Grimmett with his hand near his left front pocket. (Id. at 9-10, 174-75.) The arrest team forced Yantis to the ground, handcuffed him, and found a pistol in his left front pocket. (Id. at 10, 176.) After receiving his Miranda warnings, Yantis claimed that the things on the porch belonged to Sargent. (Id. at 11-12, 176-77.) After getting Sargent's consent and the additional consent of Jennifer Strange to look at the things on the porch, Grimmett found a loaded pistol in the gym bag and counterfeit money in a black shaving bag. (id. at 12-13, 177-79.)
Although the apartment was leased to a Mr. Ciccarelli, Yantis had been staying there with his girlfriend, Colleen Sargent. (2 R. on Appeal at 6.)
Strange was another woman who lived in Ciccarelli's apartment. (2 R. on Appeal at 40, 177.)
Secret Service Agent John Jones and Arlington Police Detective Faber interviewed Yantis at the Arlington Police Department. (Id. at 22, 191.) Jones again read Yantis his Miranda rights. (Id. at 23, 192.) Yantis, in a written statement, admitted to copying, binding, and possessing the counterfeit money. (Id. at 27, 34, 195.) Yantis apparently also told Jones that he manufactured the money to use as "flash" money in a drug buy. (Id. at 33, 195-99.) Yantis would not include this in his written statement because he thought he would look bad if he admitted to using the money to buy drugs. (Id. at 34.)
Based on the counterfeit money, the Arlington Police contacted the United States Secret Service.
In other words, Yantis would wrap a few genuine bills around the counterfeit bills in the flash roll to fool drug dealers about the amount of money Yantis was paying.
On March 17, 1999, Yantis was charged in a two-count indictment with one count of manufacturing counterfeit obligations and one count of possession of counterfeit obligations. 18 U.S.C. § 471 472. (1 R. on Appeal at 1.) Before trial at a hearing on Yantis's motion to suppress his statement, Yantis claimed he had asked for a lawyer before Jones arrived and that he told Jones that he did not want to talk to him. (2 R. on Appeal at 50-51.) He asserted that he waived his rights and talked to Jones only because Jones promised to help him if he talked. (Id. at 52.) He denied ever saying that he was going to use the money as a flash roll in a drug deal and claimed the story had been fabricated by the arresting officers and passed on to Jones and Faber. (Id. at 56-57.) Jones denied promising to help Yantis or coercing him to confess in any way. (Id. at 26.) The trial court found that Yantis's statement was voluntary and admissible and denied the motion to suppress. (Id. at 102-03; 1 R. on Appeal at 107-11.)
On December 1, 1999, a jury found Yantis guilty of both counts. (1 R. on Appeal at 131.) On March 9, 2000, the District Court sentenced Yantis to 41 months' imprisonment on each count and 3 years' supervised release on each count, all to be served concurrently. (Id. at 183, 185-86.) The District Court further imposed a mandatory special assessment of $200. (Id. at 183-84.) Yantis filed a timely notice of appeal on March 14, 2000. (Id. at 190.) The Fifth Circuit Court of Appeals affirmed Yantis's conviction and sentence. United States v. Yantis, No. 00-10305, 248 F.3d 1143 (5th Cir. Feb. 2, 2001) (unpublished table opinion). Apparently, Yantis did not file a petition for writ of certiorari. (Docket Entry No. 84; Movant Mem. at 4.) On January 25, 2002, Yantis filed a motion for post-conviction relief with supporting memorandum of law. The government has filed a response, and Yantis has filed a reply.
D. ISSUES
Yantis raises the following claims for relief:
1. The District Court erred in denying his motion to substitute counsel and in not accepting his guilty plea.
2. Trial counsel was constitutionally ineffective.
3. Appellate counsel was constitutionally ineffective.
E. DISCUSSION 1. Motion to Substitute Counsel
Yantis argues that the District Court abused its discretion in denying his motion to substitute counsel and in not accepting his subsequent attempt to plead guilty. The government asserts that Yantis has procedurally defaulted his claim.
After conviction and exhaustion of any right to appeal, courts are entitled to presume that a defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (en banc op. on reh'g), cert. denied, 502 U.S. 1076 (1992). A defendant may challenge his conviction or sentence after it is presumed final only on issues of constitutional or jurisdictional magnitude and may not raise an issue for the first time on collateral review without showing both cause for his procedural default and actual prejudice resulting from the errors. Shaid, 937 F.2d at 232. In other words, a writ of habeas corpus will not stand in as a substitute for an appeal. Frady, 456 U.S. at 165; Davis v. United States, 417 U.S. 333, 345 (1974). Yantis has not made any showing of cause to excuse his failure to raise this claim for the first time on collateral review.
Although Yantis is correct in asserting that constitutionally ineffective assistance of appellate counsel is cause to excuse the default (Movant Traverse at 4), as discussed below in section I.E.2.b., Yantis has failed to show that he received such ineffective assistance. McCleskey v. Zant, 499 U.S. 467, 494 (1991); Murray v. Carrier, 477 U.S. 478, 486-88 (1986).
Because Yantis has not shown cause for his procedural default, he must demonstrate that the trial court's denial of his motion to substitute counsel "probably resulted in the conviction of one who is actually innocent" in order to be entitled to collateral review. Carrier, 477 U.S. at 496. Although Yantis asserts in a conclusory manner that he did not commit the crime, he also claims in his motion to vacate that he should have been allowed to plead guilty after the District Court denied his motion to substitute counsel. These diametrically opposed positions belie Yantis's assertions of innocence. (Movant Mem. of Law at 6; Movant Traverse at 5.) Thus, this claim is procedurally defaulted.
However, as pointed out infra in section I.E.2.b., this claim is also meritless.
2. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). To determine deficient performance, a reviewing court must strongly presume that trial counsel rendered adequate assistance and that the challenged conduct was the product of a reasoned trial strategy. Id. at 689-90.a. Trial counsel
Yantis essentially alleges that he received ineffective assistance of trial counsel when his lawyer:
1. was ill prepared for the motion to suppress hearing,
2. was not familiar with the facts of the case,
3. failed to conduct discovery regarding Jones's statement about the flash roll,
4. did not discuss Yantis's testimony with him before the hearing on the motion to suppress,
5. failed to object to irrelevant testimony,
6. failed to invoke the Rule during the suppression hearing,
7. did not attempt to impeach Jones's testimony,
8. failed to request a jury instruction on the poor authenticity of the counterfeit money,
9. failed to request a venue instruction,
10. failed to object when the District Court would not let the jury have access to a transcript of the trial testimony,
11. offered no evidence and presented no witnesses at the suppression hearing,
12. did not object to the government's "improper vouching" for Jones,
13. did not challenge the pre-indictment delay, and
14. did not object to the gun enhancement.
(1) pretrial lapses
Yantis argues that counsel was ineffective for failing to challenge the eight-month delay between his arrest and the indictment. (Movant Mem. at 23-24.) Although the government waited approximately eight months before indicting Yantis, it was issued within the applicable statute of limitations, which is the primary protection against "overly stale criminal charges." United States v. Marion, 404 U.S. 307, 322 (1971); see 18 U.S.C. § 3282. But the Constitution provides some additional protection against excessive delay. United States v. Stumpf, 827 F.2d 1027, 1029-30 (5th Cir. 1987). To establish that the delay in securing an indictment violated his due process rights, Yantis must prove that he suffered actual and substantial prejudice as a result of the delay. United States v. Lovasco, 431 U.S. 783, 789-90 (1977); United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir. 1996) (en banc op. on reh'g), cert. denied, 519 U.S. 1076 (1997).
He asserts that the delay resulted in lost witnesses and gave the government the opportunity to use the delay as an explanation for why Yantis's version of the crime had changed since the arrest. (Id. at 2, 23-24.) However, the mere loss of potential witnesses is insufficient absent a showing that their testimony "would have actually aided the defense" and that "the information . . . could not otherwise be obtained from other sources.' United States v. Beszborn, 21 F.3d 62, 66-67 (5th Cir.), cert. denied, 513 U.S. 934 (1994). Yantis argues that the missing witnesses would have testified that the counterfeit money was intended to only be used in poker games with friends. However, he fails to show that the witnesses were "lost" because of the pre-indictment delay or that the information could not have been obtained through, at the very least, Sargent's testimony.
Yantis also asserts that the delay resulted in his inability to call Ciccarelli and Strange regarding their lack of consent to search the bags. (Movant Mem. at 15, 23.) But lack of consent was raised at the suppression hearing through Sargent's testimony. Finally, the pre-indictment delay did not effectuate the government's argument that Yantis fabricated parts of his defense. In fact, the government could have made that argument even if Yantis had been indicted the same day as his arrest. In other words, the government's fabrication argument could have been proffered at trial regardless of the length of time it took to return an indictment. Thus, Yantis has failed to show deficient performance because counsel's actions in failing to challenge the pre-indictment delay were objectively reasonable. Stumpf, 827 F.2d at 1030.
Yantis also asserts that counsel was ineffective for failing to challenge the material variance in the indictment, i.e., that the serial numbers charged did not match the numbers of the bills found in the black shaving bag. (Movant Mem. at 2, 13.) However, a variance is fatal only if it affects a defendant's substantial rights, either by surprising the defendant at trial or exposing him to a double-jeopardy risk. United States v. Robles-Vertiz, 155 F.3d 725, 729 (5th Cir. 1998). The serial numbers of counterfeit bills are mere surplusage and, thus, did not affect Yantis's substantial rights. Neville v. United States, 272 F.2d 414, 416 (5th Cir. 1959), cert. denied, 362 U.S. 924 (1960); cf. Robles-Vertiz, 155 F.3d at 729; United States v. Munos, 150 F.3d 401, 417 (5th Cir. 1998). Accordingly, counsel cannot be held ineffective for failing to raise an issue that would not have resulted in any relief for Yantis. United States v. Preston, 209 F.3d 783, 785 (5th Cir. 2000).
(2) motion to suppress
Yantis argues trial counsel was not prepared for the hearing on the motion to suppress. Specifically, he asserts that counsel filed the motion "hastily" and failed to challenge the government's claim that Strange and Sargent had given permission to search the shaving bag. (Movant Mem. at 14-16.) Although pretrial motions were due by August 16, 1999 (1 R. on Appeal at 27), on November 16, 1999, counsel filed a motion to suppress with a request for leave to file the motion out of time. (Id. at 78-85.) See FED. R. CRIM. P. 12(b)-(c). He did this at Yantis's request, which was 24 days before trial, even though Yantis gave no earlier indication that he wanted such a motion filed. (Id. at 78-79.) Thus, it is apparent that Yantis's own late insistence on an ultimately unsuccessful motion to suppress was the cause of counsel's "hasty" motion. Further, at the suppression hearing, counsel did challenge the government's assertion that consent was given. Counsel called Sargent as a witness, and she categorically denied giving the police consent to search the black shaving bag. (2 R. on Appeal at 88-89.) Based on her testimony that the bags belonged to her and Yantis and Yantis's testimony that Sargent should be asked about searching the bags (id. at 46, 88), it would have been illogical to call Strange on the subject of consent because she did not have standing to give consent. United States v. Wilson, 36 F.3d 1298, 1302 (5th Cir. 1994). Counsel cannot be held deficient on this basis. United States v. Patten, 40 F.3d 774, 776-77 (5th Cir. 1994), cert. denied, 515 U.S. 1132 (1995); see also Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (holding counsel not deficient for failing to make meritless argument).
Yantis contends that counsel did not discuss Yantis's testimony with him before he testified at the suppression hearing, which resulted in counsel's failure to sufficiently challenge the issue of consent and whether Yantis had told Jones that the counterfeit money was to be used as a flash roll. (Movant Mem. at 16.) Even assuming counsel did not sufficiently prepare Yantis's testimony before the suppression hearing, there is no showing that he was prejudiced as Yantis contends. In fact, counsel introduced evidence that challenged Sargent's consent to search and sufficiently raised to the District Court Yantis's allegation that he never told Jones he was using the counterfeit money to fool drug dealers. (2 R. on Appeal at 34, 56-57, 88.) Counsel further ensured that Yantis had introduced all the evidence he wanted to introduce at the suppression hearing. (Id. at 57-58.)
Yantis argues that counsel failed to object to irrelevant questions the government asked him during his testimony at the suppression hearing. (Movant Mem. at 16.) Yantis has failed to make the appropriate showing of deficient performance. As shown by the portions of the record Yantis relies on, counsel objected to the questions, and the District Court sustained the objections. (2 R. on Appeal at 61, 76.)
Yantis asserts that counsel was ineffective for failing to invoke the Rule at the suppression hearing, which resulted in Yantis's witnesses sitting outside the courtroom while the government's witnesses were present during the entire hearing. (Movant Mem. at 16.) First and contrary to Yantis's contentions, the record does not clearly indicate that Yantis's witnesses were required by the District Court to stay outside the courtroom. (2 R. on Appeal at 79, 85.) Second, even if the Rule were invoked, Jones could have remained in the courtroom. FED. R. EVID. 615. Thus, Yantis has failed to make the required Strickland showing.
Yantis argues that counsel failed to effectively move to suppress the physical evidence, namely the counterfeit money and the loaded pistol. (Movant Mem. at 20-22.) Because Yantis continues to assert that the property on the patio was not his, he did not have standing to challenge the seizure of the evidence. Wilson, 36 F.3d at 1302. Thus, counsel cannot be held ineffective for his actions in a frivolous endeavor that he pursued at Yantis's insistence. (1 R. on Appeal at 78-79.) However, the record shows that counsel adequately questioned the circumstances surrounding the discovery of the physical evidence, whether the officers had consent to search the bags, and whether the bags were within Yantis's reach after the arrest. (2 R. on Appeal at 46, 88-89, 98-99.) Yantis's dissatisfaction with the manner in which counsel raised these issues at the suppression hearing does not satisfy his burden under Strickland and cannot overcome the hurdle that counsel's actions were the result of reasoned trial strategy. Strickland, 466 U.S. at 689-90; see Engle v. Isaac, 456 U.S. 107, 134 (1982). Further, Yantis's claim that Faber, if called as a witness at the suppression hearing, "would have testified that [Yantis] never made such statement [about a flash roll] and that Jones did not provide counsel when asked by [Yantis], and that SA Jones did indeed make promises to [Yantis] in order to coerce him into signing a written statement" is conclusory. United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993); see also Kinnamon v. Scott, 40 F.3d 731, 734-35 (5th Cir.), cert. denied, 513 U.S. 1054 (1994). (Movant Mem. at 22.)
(2) investigation and presentation of defense
Yantis argues that counsel was ineffective when he failed to conduct discovery regarding Jones's assertion that Yantis said he was using the counterfeit money as a flash roll to buy drugs. (Movant Mem. at 14.) The crux of Yantis's argument is that counsel erred at trial in raising the theory that Jones fabricated the flash-roll statement because the government then had the right to rehabilitate Jones with a July 9, 1999 report that included the flash-roll information. (2 R. on Appeal at 22 1-26.) In Yantis's words, if counsel had conducted discovery, "he would have known a report was indeed made in early July, 1998, thus making his fabrication theory absurd and foolish." (Movant Traverse at 12.) This court finds this claim to be disingenuous. Yantis himself repeatedly and vociferously attacks counsel's failure to adequately show that he never said he was using the money as a flash roll in drug buys. (Movant Mem. at 2, 8, 15-17.) To now argue that counsel should not have challenged the flash-roll statement as fabricated because the door was then opened for admission of the July 9 report is inconsistent and impermissibly attempts to second-guess counsel's trial strategy. Strickland, 466 U.S. at 689-90.
Yantis next asserts that counsel failed to impeach Jones's testimony at trial when he testified that Yantis would not write down the flash-roll statement, but then testified that Yantis had "alluded" that that was the purpose of the counterfeit money. (Movant Mem. at 17; 2 R. on Appeal at 195.) As discussed above, counsel did attack the veracity of Jones's flash-roll assertion. Thus, he cannot be held deficient.
(3) jury charge and jury argument
Yantis contends that counsel was ineffective for failing to request a jury instruction on the poor quality of the counterfeit money, which would have negated intent. (Movant Mem. at 17-18.) However, counsel argued to the jury that Yantis did not have the requisite intent based on the inferior quality of the bills. (2 R. on Appeal at 164; 3 R. on Appeal at 115.) Merely because counsel did not request a specific, supplemental instruction that Yantis contends he was entitled to does not render counsel defective. Counsel put the issue before the jury, and the jury was empowered under the charge as given to consider Yantis's intent; thus, Yantis was not prejudiced by the absence of the instruction. (1 R. on Appeal at 123.)
Yantis also argues that counsel should have requested a jury instruction on proper venue. Specifically, he argues that because the money was not manufactured in Arlington, Texas, venue on the manufacturing count was not proper in the Northern District of Texas. (Movant Mem. at 18-19; Movant Traverse at 10-11.) Venue must only be proved by a preponderance of the evidence. United States v. Dupre, 117 F.3d 810, 822 (5th Cir. 1997), cert. denied, 522 U.S. 1078 (1998). Additionally, for venue purposes, counterfeiting offenses are presumed to have been committed where the notes are found. United States v. London, 714 F.2d 1558, 1565 (11th Cir. 1983). If an offense is begun in one district and completed in another, venue is proper in any district in which the offense was "begun, continued, or completed." 18 U.S.C. § 3237 (a); Dupre, 117 F.3d at 822. Thus, venue was proper in the Northern District of Texas, and counsel cannot be held deficient for failing to challenge proper venue. Preston, 209 F.3d at 785.
Yantis asserts that counsel should have objected when, during closing jury argument, the government vouched for Jones's credibility (Movant Mem. at 22):
Even [Yantis's] testimony supports that claim [of intent to defraud] and the fact that it wasn't something that Special Agent Jones was sitting in his office and he's saying, you know, I guess I'm going to have to figure out what kind of elements I'm going to do to make this case, and, gee, we didn't prove intent to defraud, so let me make that up. That was brought — even in [Yantis's] statement, that came up at the time of the confession.
I don't — I submit to you Special Agent Jones is going to put his career on the line just to make a fellow possessing some counterfeit money on the case. But I don't think you have to just consider that. I think you look at the complete evidence as the judge instructs you. (3 R. on Appeal at 109-10.)
A determination of improper vouching rests on whether the prosecutor's statements might reasonably have led the jury to believe that the prosecutor possessed extrinsic evidence that convinced the prosecutor of the defendant's guilt. United States v. Ellis, 547 F.2d 863 869 (5th Cir. 1977). In this case, the prosecutor did not suggest to the jury his independent determination of Jones's credibility. He was merely pointing out that Jones had no reason to lie, which is not improper vouching. United States v. Davis, 831 F.2d 63, 67 (5th Cir. 1987). Thus, counsel was not defective for failing to object to this proper argument. Preston, 209 F.3d at 785.
(4) jury deliberation
Yantis argues that counsel should have objected when the District Court would not allow the jury access to a transcript of the trial testimony during their deliberations. (Movant Mem. at 19.) The jury requested the transcript of the cross-examination of Yantis. The District Court merely told them to "go back . . . and determine whether there is a dispute as to some of the testimony, and then identify what that dispute is, once I have that, then I can direct the court reporter to search her notes." (3 R. on Appeal at 139-40.) The jury decided to withdraw the transcript request. (Id. at 141.) This was not an improper response to the jury's broad and nonspecific request. Thus, counsel was not deficient. Id.
(5) sentencing
Yantis asserts counsel was ineffective for failing to object to the gun enhancement imposed under the Sentencing Guidelines. U.S. SENTENCING GUIDELINES MANUAL § 2B5.1 (b)(4) (2001). (Movant Mem. at 24-25.) Yantis had a gun in his pants pocket when he was arrested, and another gun was found in the same area on the porch where the counterfeit bills were found. This evidence, along with the evidence that Yantis made the money to use in a drug deal, was enough to justify the enhancement. United States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999), cert. denied, 529 U.S. 1044 (2000). Counsel was not deficient.
(6) cumulative error
It appears that Yantis is attempting to argue that the cumulative effect of counsel's errors inescapably leads to the conclusion that he was constitutionally ineffective. (Movant Mem. at 2; Movant Traverse at 12.) Habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law, (2) the errors were not procedurally defaulted, and (3) the errors so infected the entire trial that the resulting conviction violates due process. Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en banc). However, a habeas petition may not just complain of unfavorable rulings or events in an effort to cumulate errors. Id. at 1458. As noted above, Yantis's claims regarding counsel's representation are either meritless or do not rise to the federal constitutional dimension necessary to warrant cumulative-error analysis. As such, Yantis has presented nothing to cumulate. Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir.), cert. denied, 522 U.S. 880 (1997).
Further, this court recognizes that the record shows that Yantis fought counsel at every turn in this case. Counsel continued to represent Yantis effectively and acceded to many of Yantis's untimely and ill-conceived demands. The entirety of the record compels this court to conclude that counsel was constitutionally effective. Cf Engle, 456 U.S. at 134 (holding Constitution guarantees criminal defendants only fair trial and competent counsel, not that every conceivable claim will be raised).
b. Appellate counsel
Yantis also argues that appellate counsel was constitutionally ineffective because she:
1. failed to raise ineffective assistance of counsel or the trial court's error in failing to substitute counsel and
2. did not request a transcript of the pretrial hearing on Yantis's request for substitution of counsel. (Movant Mem. at 25-26.)
Claims of ineffective assistance of appellate counsel must likewise meet the strict Strickland standard. Smith v. Robbins, 120 S.Ct. 746, 764 (2000). As with his claims against trial counsel, Yantis has failed to establish ineffective assistance as required by Strickland.
Regarding Yantis's first claim, appellate counsel raised ineffective assistance of counsel on appeal. Yantis, No. 00-10305, slip op. at 4. Further, the record shows that the trial court did not abuse its discretion in denying Yantis's last-minute request for new trial counsel thus, appellate counsel cannot be held defective for failing to raise a frivolous issue. Jones v. Barnes, 463 U.S. 745, 751 (1983); see Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992) (holding counsel not deficient for failing to raise meritless argument on appeal). Finally, appellate counsel did request a transcript of the hearing on Yantis's request for new counsel. (2nd Supp. R. on Appeal.)
Gates v. Cook, 234 F.3d 221, 227 (5th Cir. 2000); Bass v. Estelle, 696 F.2d 1154, 1159 (5th Cir.), cert. denied, 464 U.S. 865 (1983). (2nd Supp. R. on Appeal at 3-11.)
II. RECOMMENDATION
Yantis has failed to make a showing of the denial or infringement of his constitutional rights. The motion to vacate should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until August 1, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the District Court. See Douglass v. United Sen's. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 1, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.