IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-10798 USDC No. 3:84-CR-168-P __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TYRELL DEFARIS ERWIN,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas - - - - - - - - - -

December 20, 1995 Before KING, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

Tyrell Erwin appeals the denial of his motion for relief

under

. Erwin's motions for leave to proceed in

forma pauperis, appointment of counsel, and release pending

appeal are DENIED.

We do not consider Erwin's contention, raised for the first

time on appeal, that the district court constructively amended

his indictment by allowing the jury to convict him of

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-10798 -2-

counterfeiting. No manifest injustice results from our refusal

to entertain Erwin's contention; Erwin already had been convicted

of counterfeiting and the jury instructions did not allow the

jury to convict of counterfeiting again. Varnado v. Lynaugh,

(5th Cir. 1991).

The district court did not constructively amend Erwin's

indictment by failing to correctly instruct the jury regarding a

racketeering nexus, nor was counsel ineffective for failing to

raise Erwin's constructive amendment contention. We found in

Bonnie Erwin's § 2255 appeal that the district court adequately

instructed the jury regarding a racketeering nexus.

We do not entertain Erwin's contentions regarding grand jury

misconduct and that he was indicted for cocaine offenses based on

hearsay; contentions raised for the first time on appeal. Those

contentions would require us to make factual determinations; we

do not make such determinations. Varnado,

.

Counsel was not ineffective for failing to raise a timely

objection to the Government's use of peremptory strikes, pursuant

to Batson v. Kentucky,

(1986). Erwin's trial

occurred in December 1984; Batson was decided on April 30, 1986,

almost two years later. Counsel was not ineffective for failing

to anticipate Batson.

Erwin does not develop his contention that counsel was

ineffective for failing to obtain information regarding grand

jury and petit jury selection procedures and failing to challenge

those procedures beyond merely stating them. He has failed to

brief that issue for appeal. Yohey v. Collins,

, 225 No. 95-10798 -3-

(5th Cir. 1993).

The statute allowing the Drug Enforcement Administration

(DEA) to place drugs temporarily on the schedules of controlled

substances,

(h), was enacted in 1984. The DEA had

placed phenmetrazine on schedule II and pentazocine on schedule

IV of the schedules of controlled substances before

(h) was enacted. See

(d)(3),

1308.14(f)(1)(April 1, 1984 & April 1, 1982). Because

phenmetrazine and pentazocine were on the schedules of controlled

substances before the statute on which Erwin relies was enacted,

Erwin's contentions that the DEA failed to follow the procedures

in

(h) and that counsel was ineffective for

failing to raise the issue are without merit.

Erwin's contentions that his convictions violated the Double

Jeopardy Clause and that his punishment was disproportionate

because the Government obtained forfeiture of his assets is

without factual basis. The Government sought and obtained

forfeiture of property against Bonnie Erwin only, not against

Tyrell Erwin.

The record before this court is sufficient for determination

of Erwin's contentions. No evidentiary hearing is necessary.

United States v. Drummond,

(5th Cir. 1990),

cert. denied,

(1991).

APPEAL DISMISSED. See 5TH CIR. R. 42.2.