IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40343 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JERRY D. STILES,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:95-CV-234 - - - - - - - - - - November 15, 1996 Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

PER CURIAM:*

Jerry D. Stiles, federal inmate #04651-078, appeals the

denial of his

motion. Stiles does not raise an

issue concerning two grounds raised in his § 2255 motion: the

trial court’s failure to instruct the jury on the issue of

materiality and the Government’s purported failure to disclose

exculpatory evidence concerning one witness, James Goggans. Any

argument as to these issues are deemed abandoned on appeal. See

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-40343 - 2 -

Eason v. Thaler,

, 9 n.1 (5th Cir. 1994).

Stiles raises the following arguments: 1) his ineffective-

assistance claims are not procedurally barred in a collateral

proceeding; 2) counsel rendered ineffective assistance by failing

to interview Goggans and others and to mount a defense based on

Stiles’ reliance on the advice of counsel; 3) the trial court

erred in failing to give the requested jury instruction on good-

faith reliance on counsel’s advice; and 4) counsel was

ineffective on appeal by failing to challenge the trial court’s

failure to give that requested instruction.

Stiles failed to make the necessary showing of cause and

prejudice on his ineffective-assistance claim concerning the

investigation and presentation of the advice-of-counsel defense.

See Strickland v. Washington,

(1984).

Appellate counsel did challenge the district court’s refusal to

give the requested jury instruction. Thus, there is no factual

basis for Stiles’ ineffective-assistance claim. Further, this

court’s determination of the jury-instruction issue in affirming

Stiles’ conviction forecloses consideration of the issue in a

§ 2255 proceeding. United States v. Kalish,

(5th Cir.), cert. denied,

(1986).

This court has not yet determined whether a certificate of

appealability (COA) is required under the circumstances of this

appeal. See

. To the extent that a COA is

required, we construe Gonzalez’ notice of appeal as an No. 96-40343 - 3 -

application for a COA and DENY the motion.

AFFIRMED.