IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-00470

IN RE: TONY EPPS,

Movant.

---------------------

Motion for an order authorizing the United States District Court for the Southern District of Texas to consider a successive habeas corpus application

----------------------

December 15, 1997 Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Tony Epps, Texas prisoner # 450886, has moved this court

for an order authorizing him to file a successive

habeas corpus application in the district court. Epps

asserts that his counsel was ineffective because he erroneously

informed him that he could receive probation, insisted that he

waive his right to jury trial, and caused him to reject the

state’s offer of a 45-year sentence. He also contends that the

trial court abused its discretion at sentencing by admitting

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 97-00470 - 2 -

evidence that proved elements not charged in the indictment, thus

allowing proof of an essential element of the crime on an

alternative basis, which he admits is permitted by statute.

Epps does not make a prima facie showing that his successive

§ 2254 habeas corpus application is based on newly discovered

evidence or on a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was

previously unavailable. See

(b)(2). Therefore,

Epps’ motion for permission to file a successive § 2254

application is DENIED.