IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11394 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENNIE JAY JACKSON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:95-CV-108 (2:91-CR-22-03) --------------------

November 10, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Bennie Jay Jackson, federal prisoner # 21718-077, appeals

the district court’s denial of his

motion. We

AFFIRM.

Jackson argues that counsel was ineffective for failing to

interview and call Tex Preston as a witness. Jackson fails to

make the requisite showing of prejudice. Alexander v. McCotter,

(5th Cir. 1985). Jackson also argues that

counsel was ineffective for failing to interview and call Donnie

Joe Morris as a witness. The Government could have impeached

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-11394 -2-

Morris’ testimony with his statement to Officer Hughes that

Jackson was his supplier. Further, Morris’ proposed testimony

would have been contradicted by Teresa Watt’s testimony about

holding the marked money for Jackson. Jackson has not shown that

he was prejudiced by counsel’s failure to call Morris as a

witness.

Jackson also argues that counsel was ineffective for failing

to interview and call Donnie Shanklin and James Jackson as

witnesses. These two witnesses were not considered by the

district court because they were not included in Jackson’s

original or supplemental § 2255 motions. Jackson does not argue

that the district court erred in refusing to consider claims not

raised in the manner authorized. In effect, they are claims that

were not raised in the district court. The burden of raising

grounds for relief falls with the petitioner. See Rule 2(b) of

the Rules Governing Section 2255 Proceedings. The district court

cannot grant § 2255 relief, and does not err in not granting

§ 2255 relief, on a ground that was not presented to it. This

court will not consider new grounds for § 2255 relief raised for

the first time on appeal. United States v. Madkins,

(5th Cir. 1994); United States v. Cates,

(5th Cir. 1992). Further, new claims raised after entry of final

judgment in a § 2255 proceeding are appropriately viewed as a

successive § 2255 motion. See United States v. Rich,

(5th Cir. 1998), cert. denied,

(1999)

(§ 2255 case); Behringer v. Johnson,

(5th Cir. No. 98-11394 -3-

1996) (§ 2254 case). Thus, we do not consider Jackson’s claims

regarding these two witnesses.

Jackson also argues that counsel was ineffective for failing

to file a motion to dismiss count 12 because it failed to inform

him of the specific date of the crime alleged and that he was

thus unable to prepare a defense. Jackson did not raise this

claim in the district court. We will not consider the claim for

the first time on appeal. Madkins,

; Cates,

.

Jackson states that his counsel was ineffective for failing

to advise him that he should not personally contact potential

witnesses. He proceeds to argue that the charge of obstruction

of justice should have been dismissed because it was clear from

the bond hearing that he did not threaten the witness. He argues

that the evidence was insufficient to support his conviction

under

. Jackson does not argue his claim in the

context of ineffective assistance. Thus, he has abandoned that

claim. See Yohey v. Collins,

(5th Cir. 1993).

This court rejected his claim that there was insufficient

evidence to support this conviction on direct appeal and we will

not consider it again in this § 2255 proceeding. See United

States v. Kalish,

(5th Cir. 1986) (issue raised

and rejected on direct appeal may not be presented in a

subsequent § 2255 proceeding).

Jackson argues that counsel was ineffective for failing to

challenge the jury panel based on racial composition prior to

voir dire. Counsel did challenge the jury panel after the jury No. 98-11394 -4-

was selected, but before it was actually sworn and impaneled.

The district court heard evidence and denied the motion

challenging the panel, implicitly ruling that a prima facie

showing of intentional systematic exclusion had not been made.

Thus, any delay in the making of the motion did not prejudice

Jackson.

Jackson argues that counsel was ineffective for failing to

call character witnesses at the sentencing hearing. Jackson was

sentenced to 292 months, the lowest point in the guideline range.

Further, character-related considerations are not ordinarily

relevant to sentencing below the guideline range. See U.S.S.G.

§§ 5H1.2, 5H1.5, 5H1.6, and 5H1.11.

Jackson argues that his appellate counsel was ineffective

for failing to petition the appellate court to correct a

misstatement of fact made in its opinion affirming his conviction

and sentence. Jackson does not identify the alleged misstatement

or state how it might have affected the panel opinion. This

issue is inadequately briefed and is considered abandoned.

Yohey,

.

Jackson argues that appellate counsel was ineffective for

failing to appeal his conviction for engaging in a continuing

criminal enterprise when he was acquitted on the conspiracy

count. The evidence in the trial record sufficiently supports

Jackson’s conviction for engaging in a continuing criminal

enterprise (CCE). Jackson’s acquittal of the conspiracy count

does not affect his conviction on the CCE count. Inconsistent

verdicts are not reviewable, and a defendant may not upset such a No. 98-11394 -5-

verdict. United States v. Powell,

(1984). In

finding a defendant guilty of conducting a continuing criminal

enterprise, the jury necessarily found Jackson participated in a

conspiracy. United States v. Garcia-Abrego,

(5th Cir. 1998), cert. denied,

(1999).

Jackson argues that because he was acquitted of the

conspiracy count, trial counsel should have objected to the PSR

on the ground that he should only have been sentenced for cocaine

and not cocaine base, because cocaine base was not mentioned in

the CCE charge. He argues that appellate counsel should have

appealed on this ground. Jackson’s “acquittal” of the conspiracy

charge did not prevent the district court from finding Jackson

responsible for the full amount of cocaine powder and/or base

involved in the conspiracy. United States v. Watts,

(1997). Neither trial nor appellate counsel were

deficient for failing to raise this issue.

Jackson does not sufficiently brief his argument that the

grand jury and the petit jury were unconstitutionally selected.

He merely refers the court to his argument of ineffective

assistance of counsel. Jackson does not provide any record cites

to the alleged evidence establishing his prima facie case, and,

thus, his briefing of the issue is insufficient. See Grant v.

Cuellar,

(5th Cir. 1995); Fed. R. App. P.

28(a)(9)(A); 5th Cir. R. 28.2.3.

Jackson argues that the U.S. Attorney failed to disclose

favorable evidence to his attorney, the evidence being the

pretrial statements of Donnie Joe Morris, at least one of which No. 98-11394 -6-

contained evidence exonerating Jackson. A review of the record

in this case reveals the government did not suppress Morris’

statement.

Jackson argues that the Government accused his trial counsel

of misconduct toward Teresa Watts, the witness involved in

Jackson’s obstruction conviction, thus causing a conflict of

interest between counsel and Jackson. He contends that the

Government made this false accusation for the sole purpose of

intimidating and distracting defense counsel in his

representation of Jackson. Jackson does not cite to the portion

of the record where these accusations were allegedly made. The

excerpts provided by Jackson in the district court from the

transcript of the bond hearing where the alleged violation

occurred show no accusations of misconduct by the prosecutor

against Jackson’s counsel.

AFFIRMED.