UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 95-21033

(Summary Calendar) _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAMBERT LUCIOUS,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas (CR H-92-141-01)

November 26, 1996 Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Lambert Lucious appeals the district court’s denial of his

petition for writ of habeas corpus. We affirm.

A jury convicted Lucious of conspiracy to import and possess

more than one kilogram of heroin with intent to distribute, in

violation of

(a)(1) and (b)(1)(A)(i), 952, 960, and

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 963. The judge sentenced him to serve two concurrent terms of 188

months followed by concurrent five-year terms of supervised

release. Lucious appealed his conviction to this court, claiming

that it was based on impermissible extrinsic act evidence and

hearsay. We detailed the facts of the criminal case, and our

conclusions that Lucious’s claims were meritless, in an unpublished

per curiam opinion styled United States v. Lucious, No. 93-2205

(5th Cir. April 4, 1994).

Lucious then filed this petition for writ of habeas corpus,

making four arguments that he did not raise on direct appeal. The

district court granted the government’s motion for summary

judgment, from which Lucious now appeals. Lucious argues for the

first time on habeas appeal (1) that his conviction was obtained by

testimony the prosecution knew or should have known was false; (2)

that the district court erred in denying his motion for continuance

so his wife could testify; (3) that the prosecutor suppressed

material, favorable evidence in violation of Brady v. Maryland; and

(4) that his counsel was ineffective because he failed to conduct

an adequate investigation and failed to impeach a prosecution

witness.

A defendant who has been convicted and has exhausted or waived

his right to appeal is presumed to have been “fairly and finally

convicted,” United States v. Shaid,

(5th Cir.

1991) (en banc), cert. denied,

,

, 117

-2- L. Ed. 2d 141 (1992), and a collateral challenge may not serve as

an appeal. United States v. Frady,

,

,

, reh’g denied,

,

,

(1982); Shaid,

.

Therefore, a defendant who raises a constitutional or

jurisdictional issue for the first time on a petition for habeas

corpus must show both cause for the default and actual prejudice

resulting from the error. Frady,

; Shaid,

. The only exception to the cause and prejudice standard is

the extraordinary case in which a constitutional violation results

in the conviction of one who is actually innocent. Shaid,

.

Lucious argues that the ineffectiveness of his counsel, who

was terminally ill with brain cancer, constitutes the “cause” for

his failure to raise these issues on direct appeal. We need not

decide whether his counsel met the guarantees of the Sixth

Amendment or whether the asserted shortcomings of his counsel were

sufficient cause for failing to raise his claims on direct appeal,

however, because Lucious has failed to show that prejudice has been

established.

Lucious first contends that his conviction was obtained by

testimony the prosecution knew or should have known was false.

Specifically, Lucious contests the identity of Edwin Williams, a

key prosecution witness, who Lucious claims is actually a drug

-3- smuggler named Boniface Okechukwu Nwisu. At trial, Lucious’s

counsel cross-examined Williams about his identity, asking him

specifically whether or not he was Nwisu, and counsel introduced

evidence at trial to impeach Williams’s allegedly false testimony.

In addition, Lucious’s attorney used evidence about Williams’s

identity in closing remarks. Lucious has failed to show why the

witness’s name is at all material to Lucious’s innocence or guilt

for drug smuggling. Therefore, he fails to show sufficient

prejudice to justify a collateral challenge under Shaid.

Lucious argues that the district court denied him due process,

the effective assistance of counsel, and his right to compulsory

process by denying Lucious’s motion to continue his trial so that

his wife could testify on his behalf at a later date. According to

Lucious, his wife would testify that she did not see Lucious and

his alleged coconspirators ingesting drug-filled balloons in the

couple’s home in Lagos, Nigeria. Lucious did not challenge the

denial of his motion for continuance on direct appeal, and he has

not shown how he was prejudiced by his wife’s failure to testify.

Taken at face value, Lucious’s version of what his wife would say

under oath is not inconsistent with the testimony at trial, since

the conspirators could easily have ingested the drugs outside of

her presence. His claim that the lack of his wife’s testimony

rises to a constitutional violation is therefore insufficient to

show prejudice.

-4- Lucious also claims that the prosecution withheld exculpatory

evidence from him in violation of Brady v. Maryland,

,

,

(1963). As examples of such

evidence, Lucious cites Williams’s real name, fingerprints, and

immigration records; the statement that coconspirator Anthony

Omagbemi allegedly gave to police on arrest; and the alleged

statement of coconspirator Charles Igbokwe on arrest. The

defense’s cross examination at trial reflects that Lucious was in

possession of some of the evidence allegedly suppressed. Brady

does not require the disclosure of evidence that is available to

the defense. United States v. Brown,

(5th Cir.),

reh’g denied,

(5th Cir. 1980). As to the rest of the

evidence, Lucious has completely failed to demonstrate that any

such evidence would have been favorable to his defense. Thus the

evidence satisfies neither the favorableness requirement of Brady

nor the prejudice requirement of Shaid.

Lucious raises an ineffective assistance of counsel claim,

asserting that his terminally ill lawyer failed to interview

Omagbemi, Williams, and Igbokwe; failed to investigate Lucious’s

records for an alibi; and failed to impeach Williams at trial.

Lucious does not assert how performance of any of these tasks by

counsel would be material to the outcome of the trial, and thus he

has failed to show prejudice under Shaid.

The only exception to the “cause and prejudice” requirements

-5- of Shaid is where the petitioner can show that a constitutional

violation probably resulted in the conviction of an innocent

person. United States v. Flores,

(5th Cir.

1993). To show “actual innocence,” a petitioner must establish

that “there is a fair probability that, in light of all the

evidence, a reasonable trier could not find all the elements

necessary to convict the defendant of that particular crime.”

Johnson v. Hargett,

(5th Cir. 1992), cert.

denied,

,

,

(1993).

Lucious has shown neither a constitutional violation nor actual

innocence. In light of the detailed testimony of the

coconspirators concerning the drug smuggling operation, it is clear

that a reasonable trier could find each element necessary to

convict Lucious.

Having failed to raise any of the above challenges on direct

appeal, Lucious had to show both cause and actual prejudice in his

trial. Lucious has not shown how any of the four alleged errors

was prejudicial, and we therefore hold that the district court

correctly declined to overturn his conviction under § 2255.1

1 We note that Lucious’s appeal was pending when the President signed into law the Antiterrorism and Effective Death Penalty Reform Act of 1996 (“AEDPA”),

Stat. 1214 (1996). Congress did not specify an effective date for § 102(c)(3), and this court has not decided whether amended § 2253 applies to pending § 2255 appeals. We decline to do so here. Because the petitioner is not entitled to relief under the less restrictive standards of § 2253 before amendment, the question of whether we deny relief under the more or less restrictive standard is moot. See Boyle v. Johnson,

(5th Cir. 1996) (declining to decide retroactivity of AEDPA to pending appeal because prisoner made insufficient showing under less restrictive standards).

-6- Accordingly, we AFFIRM.

-7-