IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60362 Conference Calendar

BILLY LEE SMITH,

Petitioner-Appellant,

versus

JAMES V. ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY; MIKE MOORE, The Attorney General of The State of Mississippi,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:96-CV-268-S-A --------------------

October 19, 1999

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

Billy Lee Smith, Mississippi inmate #69235, appeals from the

judgment of the district court denying Smith’s application for

habeas corpus relief under

. The district court

granted Smith a certificate of appealability on the issue whether

Smith was denied the effective assistance of counsel at his

robbery trial and subsequent direct appeal of his conviction and

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-60362 -2-

15-year sentence as a habitual offender. Smith contends that his

counsel was deficient for failing to challenge the habitual-

offender portion of the indictment, which appeared after the

phrase “against the peace and dignity of the state,” in violation

of Miss. Const. art 6, § 169.

Smith has not satisfied the test for postconviction relief

for ineffective assistance of counsel set out in Strickland v.

Washington,

(1984). At the time of his trial in

1992 and when his direct appeal was filed in 1993, there was no

clear basis for an objection to the indictment because McNeal v.

State,

(Miss. 1995) had not yet been decided.

Therefore, the judgment of the district court must be affirmed.

AFFIRMED.