IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-10024 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PETER AJAEGBU

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (3:96-CV-637-R) _________________________________________________________________ March 2, 1998 Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Peter Ajaegbu appeals the district court’s denial of his

motion to vacate, set aside, or correct his sentence pursuant to

We affirm.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 Also pending before the court is an appeal from the district court’s denial of Ajaegbu’s motion for the return of personal items seized by the government. United States v. Ajaegbu, No. 97-10024. Although the court initially consolidated the two appeals on motion by the government, the court has concluded that they should proceed separately and is entering an I. FACTUAL AND PROCEDURAL BACKGROUND

On July 30, 1993, a jury convicted Peter Ajaegbu of

conspiring to import heroin into the United States in violation

of

and 963. Ajaegbu, Cosmas Ekwunife, and

Javier Contreras recruited young white females to transport

heroin into the United States based on a belief that Customs

officials would be less likely to suspect them of smuggling. The

three defendants helped the female couriers to obtain passports

to travel abroad and furnished them with money, airplane tickets,

and instructions that resulted in the importation of heroin into

the United States. The evidence indicated that the females

entered the United States through several different entry points,

carrying heroin that originated from different sources, and that

not all of the defendants were personally involved in each

instance of importation. The indictment alleged, and the jury

convicted the defendants of, one overarching conspiracy.

The district court imposed a sentence of 262 months of

imprisonment and five-years of supervised release. Ajaegbu

appealed to this court, and we affirmed the conviction and

sentence. See United States v. Ajaegbu, No. 93-01929 (5th Cir.

Jan. 13 1995) (unpublished).

order deconsolidating the two appeals. The appeal dealing with the return of personal items is being addressed in a separate opinion.

2 Ajaegbu subsequently filed a motion to vacate, set aside, or

correct his sentence under

. In that motion,

Ajaegbu contended that (1) his trial and appellate attorneys had

provided ineffective assistance, (2) the venire panel did not

represent a fair cross section of the community, (3) insufficient

evidence existed to support the conspiracy conviction, (4) the

district court made two erroneous evidentiary rulings, (5) the

Government failed to disclose material and exculpatory evidence,

(6) the prosecutor made an improper argument to the jury, and (7)

the district court erred during sentencing.

In recommending that Ajaegbu’s § 2255 motion be denied, the

magistrate judge rejected each alleged instance of ineffective

assistance of both trial and appellate counsel and determined

that the evidence was sufficient and that the prosecutor had not

made an improper jury argument. Of the remaining issues in

Ajaegbu’s § 2255 motion, the magistrate judge determined that

either this court had ruled on them in Ajaegbu’s direct appeal or

Ajaegbu had not shown cause for his failure to raise the issues

on direct appeal. After independent review of the record, the

district court adopted the magistrate’s recommendation and

entered judgment denying Ajaegbu’s § 2255 motion.

II. DISCUSSION

Ajaegbu contends that his trial attorney was ineffective for

failing to interview three witnesses or call them to testify and

3 for failing to investigate and obtain evidence to impeach three

government witnesses. Ajaegbu asserts that his appellate counsel

was ineffective on direct appeal for failing to argue that a

variance existed between the proof at trial and the indictment,

failing to allege prosecutorial misconduct, and failing to

challenge two sentencing decisions.

Relief under § 2255 is reserved for transgressions of

constitutional rights and for a narrow range of injuries that

could not have been raised on direct appeal and would, if

condoned, result in a complete miscarriage of justice. United

States v. Vaughn,

(5th Cir. 1992). In

reviewing a district court’s denial of a § 2255 motion, we

examine findings of fact for clear error and questions of law de

novo. United States v. Faubion,

(5th Cir.

1994). Whether counsel provided ineffective assistance is a

mixed question that we review de novo.

To prevail on his claim of ineffective assistance of

counsel, Ajaegbu must show that (1) his counsel’s performance was

deficient and (2) the deficient performance prejudiced his

defense.

(citing Strickland v. Washington,

(1984)). Performance is deficient only if counsel’s conduct is

so egregious that the assistance rendered is below the standard

guaranteed by the Sixth Amendment.

To satisfy the prejudice

prong, Ajaegbu must demonstrate that counsel’s errors rendered

4 “the result of the trial unreliable or the proceeding

fundamentally unfair.” Lockhart v. Fretwell,

(1993); see also Faubion,

. Ajaegbu must satisfy

both prongs to prevail. A failure to establish either deficient

performance or prejudice defeats the claim. Strickland,

. The Strickland standard applies to claims of ineffective

assistance by both trial and appellate counsel. United States v.

Merida,

(5th Cir. 1993).

A. Ineffective Assistance of Trial Counsel

Ajaegbu asserts that his trial attorney provided ineffective

assistance by failing to sufficiently investigate his case and by

failing to present the mitigating evidence of potential witnesses

at trial. On post-conviction review, this court is reluctant to

find ineffective assistance based on complaints regarding

uncalled witnesses. Alexander v. McCotter,

(5th Cir. 1985). Whether or not to present a particular

witness’s testimony “is essentially strategy and thus within the

trial counsel’s domain, and . . . speculations as to what [the

witness] would have testified is too uncertain.”

Government agents found Ajaegbu’s airline ticket in the same

compartment of a garment bag as heroin connected with the

conspiracy. Ajaegbu contends that his attorney did not interview

or call to testify three witnesses -- Howard Leader, Thomas

Cascione, and Chukwudi Okolie -- who he alleges would have

5 testified that the heroin seized from the garment bag in a New

York apartment did not belong to him, thereby proving his

innocence.

To support his claim, Ajaegbu submitted affidavits from

Leader and Cascione, both New York attorneys, in which each

stated that Okolie admitted ownership of the heroin. Neither

attorney states in his affidavit that he would testify at trial.

Moreover, had they agreed to testify, any testimony regarding

statements made by Okolie would constitute inadmissible hearsay.

Ajaegbu also claims that Okolie would testify as to ownership of

the heroin. However, he offers no affidavit from Okolie, nor any

other evidence that Okolie would have testified or the substance

of that testimony had he been willing to do so.

Even assuming the witnesses would have testified as Ajaegbu

alleges, Ajaegbu cannot show prejudice because he has not

demonstrated the existence of a reasonable probability that the

result of the trial would not have been different had the three

witnesses testified. A tremendous amount of evidence existed to

justify the jury’s determination of his involvement in the

conspiracy. Sandra Hildebrandt testified that she was recruited

to smuggle heroin from Switzerland into the United States and

that Peter Ajaegbu was present at the meeting at which the

details were discussed. Ajaegbu either purchased Hildebrandt’s

airline ticket or called in the order to the travel agency.

Ajaegbu gave Hildebrandt the telephone number of the contact

6 person in Switzerland and instructions on picking up the heroin

upon her arrival. After Hildebrandt successfully smuggled the

heroin into the United States, Ajaegbu arrived at Hildebrandt’s

hotel, retrieved the suitcase containing the heroin, and paid

her. Another courier, James Gleason, testified that Ajaegbu

personally recruited him to smuggle heroin from Bangkok into the

United States. Because potential testimony from Leader, Cascione

and Okolie that the heroin seized in New York did not belong to

Ajaegbu would not have contradicted the evidence connecting

Ajaegbu to the conspiracy, no reasonable probability exists that

the outcome would have been different. Because Ajaegbu cannot

show prejudice, his claim of ineffective assistance of trial

counsel must fail.

B. Ineffective Assistance of Appellate Counsel

Ajaegbu charges that his appellate attorney provided

ineffective assistance by failing to argue on direct appeal (1)

that a variance existed between the single conspiracy charged in

the indictment and the multiple conspiracies proved by evidence

presented at trial, (2) that the court erroneously made an upward

adjustment to his sentence for his being a leader or organizer in

the conspiracy, (3) that the district court improperly enhanced

his sentence for obstruction of justice, and (4) that the

prosecutor engaged in misconduct during closing arguments.

1. Variance from the Indictment

7 Ajaegbu contends that appellate counsel should have argued

that the government’s evidence proved multiple conspiracies with

each conspiracy involving different participants and goals.

Ajaegbu also argues that the trial court did not give the jury

instructions regarding multiple conspiracies.

When the government proves one conspiracy, evidence of other

conspiracies does not necessarily create a material variance.

United States v. Valdez,

(5th Cir. 1988). On

direct appeal, Ajaegbu presented his challenge to the evidence of

multiple conspiracies in the form of a challenge to the

sufficiency of evidence to support a conviction for the charged

conspiracy. In response, this court held that the government

produced sufficient evidence to support the jury’s finding of a

single conspiracy. Ajaegbu, No. 93-01929. Ajaegbu’s challenge

to the competence of his appellate counsel in this respect is

meritless.

Ajaegbu raises the challenge to the jury instruction for the

first time in this appeal. It is, however, meritless as the jury

was correctly charged on its responsibility to determine whether

a single conspiracy or multiple conspiracies existed.

2. Role in the Offense Adjustment

Ajaegbu contends that his appellate counsel provided

ineffective assistance for failing to argue that the district

court erred in granting an upward adjustment based on Ajaegbu’s

8 role in the offense. Because a claim that the district court

erred in adjusting Ajaegbu’s sentence upward based on his role in

the offense lacks merit, Ajaegbu cannot demonstrate that his

appellate counsel rendered deficient performance in failing to

make such a claim. Smith v. Puckett,

, 585 n.6 (5th

Cir. 1990) (“Counsel is not deficient for, and prejudice does not

issue from, failure to raise a legally meritless claim.”).

The Sentencing Guidelines authorizes a three-level increase

in Ajaegbu’s offense level if he was a manager or supervisor of

the charged criminal activity and the criminal activity involved

five or more people or was otherwise extensive. U.S. SENTENCING

GUIDELINES MANUAL § 3B1.1(b). Ajaegbu participated in the activity

in which Hildebrandt smuggled heroin from Switzerland and

instructed Gleason and Johnny Moore as to the Bangkok trip. The

conspiracy involved at least five persons, including the three

defendants, Ajaegbu, Ekwunife, and Contreras, and others

including Hildebrandt, Gleason, and Moore. Thus, any challenge

by Ajaegbu’s appellate counsel to the court’s upward adjustment

in Ajaegbu’s offense level based on his role in the offense would

have lacked merit.

3. Obstruction of Justice Adjustment

Ajaegbu contends that his appellate counsel’s failure to

argue on appeal that the district court neglected to make the

fact-findings regarding which portions of Ajaegbu’s testimony the

9 court believed to be lies and the materiality of those lies

necessary to support the court’s imposition of a two-level

increase in his offense level for obstruction of justice

constituted ineffective assistance. This claim lacks merit

because Ajaegbu has not demonstrated that his appellate counsel’s

failure to raise this issue on appeal rendered his performance

unconstitutionally deficient.

In determining whether a claimant has satisfied the

deficiency prong of Strickland’s ineffective assistance inquiry,

we “must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional

assistance.” Strickland,

. “Our scrutiny of

counsel’s performance must be ‘highly deferential,’ and we must

make every effort ‘to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.’” Motley v. Collins,

(5th Cir. 1994) (quoting Strickland,

).

Ajaegbu correctly points out that the district court failed

to make the requisite fact-findings regarding the specific

statements that the district court believed to be lies and the

materiality of these statements. See United States v. Cabral-

Castillo,

(5th Cir. 1994). However, Ajaegbu’s

trial counsel did not object to the district court’s lack of

10 specific fact-findings regarding these matters; rather, she made

only a general objection that Ajaegbu merely told his version of

the story at trial and should not be penalized on that basis.2

Ajaegbu’s appellate counsel therefore could have reasonably

believed that a claim based on the district court’s inadequate

fact-findings regarding Ajaegbu’s obstruction of justice was not

properly preserved for appeal. See FED. R. CRIM. P. 51 (providing

that, “at the time the ruling or order of the court is made or

sought,” the party must “make[] known to the court . . . that

party’s objection to the action of the court and the grounds

therefor” (emphasis added)); 3A CHARLES ALAN WRIGHT, FEDERAL PRACTICE

AND PROCEDURE § 843 (2d ed. 1982) (“[I]f a specific objection on

one ground is overruled, the party cannot raise some other ground

2 Ajaegbu made the following written objection to the addendum to the PSR that added the sentence enhancement for obstruction of justice:

Mr. Ajaegbu objects to the two level increase for obstruction of justice. At trial, Mr. Ajaegbu told his version of what happened. The fact that his testimony differed from the government’s witnesses [sic] testimony and the jury chose to believe the governments [sic] witness does not mean Mr. Ajaegbu committed perjury when he testified.

To assess a two level increase, which results in an increase of approximately five years incarceration in the Federal Bureau of Prisons, would not be justified under the circumstances. Mr. Ajaegbu merely exercised his constitutional right to testify on his own behalf.

Ajaegbu’s trial counsel reiterated this objection before the district judge at the sentencing hearing.

11 for the objection on appeal.”).

If Ajaegbu’s trial counsel failed to adequately preserve his

claim regarding the inadequacy of the district court’s fact-

findings to support the sentence adjustment for obstruction of

justice, then the claim would have been subject to plain error

review on appeal. See United States v. Ravitch,

(5th Cir. 1997). Plain error review of the district court’s

sentencing determination is quite narrow: “‘[i]f the case were

remanded [and] the trial judge could reinstate the same

sentence,’ we have upheld the defendant's sentence although the

district court’s stated reasons for departing evidence a mistaken

application of the Sentencing Guidelines.”

(first set of

brackets in original) (quoting United States v. Brunson,

(5th Cir. 1990)). Because the district court concluded

that Ajaegbu had obstructed justice, it calculated his sentence

based on an offense level of 39, which indicated that the

applicable sentencing range was 262 to 327 months. See U.S.

SENTENCING GUIDELINES MANUAL ch. 5, pt. A tbl. Had the district court

not applied the obstruction of justice adjustment, Ajaegbu’s

offense level would have been 37, with an accompanying sentencing

range of 210 to 262 month. See

The court imposed a sentence

of 262 months. Thus, under a plain error standard of review, we

would have upheld Ajaegbu’s sentence on direct appeal even if we

concluded that the district court erred in imposing the

12 obstruction of justice enhancement because the district court

could have imposed the same sentence in the absence of the

enhancement. Because Ajaegbu’s appellate counsel could have

reasonably believed that a claim relating to the inadequacy of

the district court’s fact-findings in support of its imposition

of the obstruction of justice adjustment was meritless,3

appellate counsel’s failure to raise such a claim on appeal did

not render his assistance unconstitutionally deficient. This

portion of Ajaegbu’s ineffective assistance of counsel claim

therefore fails.

4. Prosecutorial Misconduct

Ajaegbu asserts that his appellate counsel rendered

3 In reaching this conclusion, we are cognizant of the fact that Ajaegbu’s codefendant, Javier Contreras, made the same objection as Ajaegbu to the district court’s adjustment of his offense level for obstruction of justice and that a panel of this court ordered the district court to resentence Contreras in light of the fact that it had not made the fact-findings necessary to support an upward adjustment for obstruction of justice. In so doing, the panel provided no indication that it reviewed Contreras’s claim regarding the adequacy of the district court’s fact-findings only for plain error, thereby implicitly indicating that it found the claim adequately preserved for appeal. However, the fact that a panel of this court ultimately reached the conclusion that the objection at issue here was adequate to preserve a claim relating to the adequacy of the district court’s fact-findings regarding obstruction of justice is not dispositive of our determination of whether Ajaegbu’s appellate counsel acted in a professionally reasonable manner in concluding prior to the panel decision on direct appeal that such a claim was not properly preserved for appellate review. Were we to conclude otherwise, we would violate Strickland’s admonition that, in determining whether counsel’s performance was deficient, we must make “every effort . . . to eliminate the distorting effects of hindsight.” Strickland,

.

13 ineffective assistance because he failed to raise a claim of

prosecutorial misconduct during closing arguments.

“Prosecutorial misconduct implicates due process concerns.” Foy

v. Donnelly,

(5th Cir. 1992). However,

“[a]bsent a violation . . . of a specific guarantee of the

Constitution, habeas corpus relief will not be granted unless the

prosecution’s conduct renders the trial fundamentally unfair so

as to deny a defendant due process of the Fourteenth Amendment.”

Branch v. Estelle,

(5th Cir. 1980). “A trial

is fundamentally unfair if there is reasonable probability that

the verdict might have been different had the trial been properly

conducted.” Foy,

(internal quotation marks and

citation omitted).

Before the judgment warrants reversal, the prosecutorial

remarks “must be more than undesirable or condemnable; they must

be so pronounced and persistent as to cast serious doubts on the

verdict,” United States v. Rodriguez,

(5th Cir.

1995), and must have been a “crucial, critical, highly

significant factor in the jury’s determination of guilt,” Ortega

v. McCotter,

(5th Cir. 1987). The reviewing

court analyzes the prosecutor’s remarks, “not in isolation, but

in context of . . . the trial as a whole.” Estelle,

.

Ajaegbu, who is Nigerian, cites the following statements

14 made by the prosecutor as appealing to the racial prejudices of

the jury:

No, ladies and gentlemen, the parties involved starting with Samson Okapala up here and coming up here and coming on down to Cosmas Ekwunife and Peter Ajaegbu here in Dallas, whose function is to recruit girls, and just like Johnny Earl Moore, can you find me some people to—some white people to be introduced to, just like Johnny Earl Moore, they contacted the Defendant Javier Contreras.

The prosecutor’s remarks during closing arguments amounted to a

summary of the government’s evidence as to the means by which the

conspiracy operated. Peter Amakwe testified that members of the

conspiracy told him that they “currently used white people to go

overseas,” rather than “the old way of swallowing the heroin.”

The prosecutor’s solitary reference to “white people” did not

constitute pronounced, persistent misconduct, if it constituted

misconduct at all under the circumstances. Moreover, considering

the remark in the context of the entire trial and the evidence of

Ajaegbu’s guilt, there is little likelihood that the remark was a

“crucial, critical, highly significant factor in the jury’s

determination of guilt.” Ortega,

. Ajaegbu’s

counsel was not ineffective for failing to raise this issue on

appeal because it is meritless.

Ajaegbu also argues that the prosecutor vouched for the

government’s witnesses when he made the following comments during

closing arguments:

The Defense would have you believe that this—that

15 Sandra is the girlfriend of Samson Okapala. . . . Remember her demeanor on the stand. Was there any guile in her voice? Was there any intent to deceive? . . . She told you what she knew. And she told you who she dealt with and when she dealt with them. . . . Counsel would have you believe that . . . the government must have lied to you. One grand conspiracy by the government to indict and prosecute these Defendants. . . . There’s an old saying, when the law is in your favor argue the facts. When the facts are against you, argue the law. And when both are against you, attack the government. And that’s what’s happened here. . . . If it had been conspired, agreed, trying to develop a case, fabricate a case against these persons, people like James Gleason would have told you that, oh, I saw not only Peter but I saw Cosmos [sic] as well . . .

A prosecutor must not vouch for a witness’s credibility

because it implies that the prosecutor has additional personal

knowledge about the witness or circumstances garnered through

extrajudicial investigation. United States v. Carter,

(5th Cir. 1992). By nature of the prosecutor’s

official position, the prosecutor’s perceived stamp of approval

to the witness’s testimony may influence the jury’s decision.

However, the government may present a bolstering argument

“in rebuttal to assertions made by the defense counsel in order

to remove any stigma cast” upon a witness. United States v.

Washington,

(5th Cir. 1995). If the remarks

did amount to bolstering, they would not have been improper

because they were made during rebuttal.

The prosecutor made these remarks in response to the defense

16 counsel’s questioning the credibility of the government’s

witnesses, in particular Sandra Hildebrandt. Ajaegbu’s counsel

had argued that Hildebrandt smuggled the heroin for Samson

Okapala and not for Ajaegbu and that she covered for Okapala when

she testified at trial. Ajaegbu’s counsel had further argued

that Hildebrandt fabricated a story to cover for Okapala. Viewed

in its entirety, the comments by the prosecutor, to rebut

assertions made by the defense, were not improper. Therefore,

Ajaegbu’s appellate counsel did not perform in a deficient manner

in failing to raise the issue on appeal.

Ajaegbu’s claim of ineffective assistance of appellate

counsel fails.

C. Evidentiary Hearing

Ajaegbu argues that the district court abused its discretion

in failing to hold an evidentiary hearing on his § 2255 motion

because factual issues are in dispute. A district court may deny

a § 2255 motion without a hearing “only if the motion, files, and

records of the case conclusively show that the prisoner is

entitled to no relief.” United States v. Bartholomew,

(5th Cir. 1992). As the above discussion demonstrates,

the district court did not need to hold an evidentiary hearing to

resolve Ajaegbu’s claims. Accordingly, the district court did

not abuse its discretion in failing to hold an evidentiary

hearing.

17 III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court denying Ajaegbu’s § 2255 motion.

18