IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40326 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAMUEL THOMAS TOWERTON,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. CA-L-96-32 - - - - - - - - - - February 3, 1997 Before KING, HIGGINBOTHAM and STEWART, Circuit Judges.

PER CURIAM:*

Samuel Thomas Towerton (federal inmate # 67847-079) has

applied to this court for leave to appeal in forma pauperis (IFP)

from the district court’s order denying his

motion to vacate. Towerton argues that he is entitled to relief

because he was denied the effective assistance of counsel.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-40326 - 2 -

IT IS ORDERED that leave to appeal IFP is DENIED, because

Towerton’s appeal lacks arguable merit and is therefore

frivolous. See Howard v. King,

(5th Cir.

1983). Because the appeal is frivolous, IT IS FURTHER ORDERED

that the appeal is DISMISSED. See 5th Cir. R. 42.2.

If this court were to hold that a certificate of

appealability (COA) is required in a case such as this, COA would

be denied. See

(c). Towerton’s motion for

appointment of counsel is also DENIED.

IFP DENIED; APPEAL DISMISSED.