IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-60049 Summary Calendar

MACK BROWN,

Petitioner-Appellant,

versus

JAMES V. ANDERSON, SUPERINTENDENT; MISSISSIPPI STATE PENITENTIARY,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:93-CV-100-SA - - - - - - - - - - December 26, 1997 Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Mack Brown, Mississippi prisoner # 62926, appeals the

district court’s judgment denying habeas corpus relief pursuant

to

. Brown argues that he was deprived of

effective assistance of counsel in several respects, the State

withheld exculpatory and impeachment evidence in violation of the

Due Process Clause, and he was deprived of his fundamental right

to testify at trial on his own behalf. We have reviewed the

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 97-60049 -2-

issues raised by Brown and conclude that he has not demonstrated

that counsel’s performance was deficient at trial or on appeal

and that he was prejudiced. See Strickland v. Washington,

(1984). Relevant to his claim that the State

withheld statements of witnesses, Brown has not established that

the statements contained exculpatory or impeachment evidence.

See Brady v. Maryland,

(1963); Giglio v. United

States,

(1972). Moreover, the record indicates

that Brown at least acquiesced to a decision that he not testify.

See Jordan v. Hargett,

(5th Cir. 1994). The

judgment of the district court is AFFIRMED.

Because Brown filed his habeas petition before April 24,

1996, we have construed the district court’s grant of a

certificate of appealability (COA) as a grant of a certificate of

probable cause (CPC). See Lindh v. Murphy,

(1997). Accordingly, we have addressed all of the issues Brown

sought to raise in the district court. See Sherman v. Scott,

(5th Cir. 1995), cert. denied,

(1996). Therefore, the motion to file an out-of-time reply brief

is DENIED as unnecessary.