IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40044 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOE HAVEN BEADLES,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas (92-CR-49-2) (6:96-CV-456) - - - - - - - - - -

December 22, 1999

Before POLITZ, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Joe Haven Beadles, federal prisoner #

04049-078, appeals the denial of his

motion.

Beadles has filed a motion for a certificate of appealability (COA)

to appeal the district court’s denial of his

motion. As Beadles filed his § 2255 motion on April 24, 1996, the

effective date of the Antiterrorism and Effective Death Penalty Act

(AEDPA), the AEDPA does not apply to his case. See Lindh v.

Murphy,

(1997). Accordingly, a COA is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. unnecessary, and no additional briefing is needed for us to

consider Beadles’ issues on appeal.

Beadles challenges the constitutionality of his conviction and

sentence for conspiracy to commit wire fraud and mail fraud in an

effort to evade Texas diesel fuel excise taxes. He also challenges

his conviction for money laundering.

Beadles argues that the government withheld evidence of a

financial agreement allegedly indicating that he paid the excise

tax, but he fails to show that the evidence was material or that

the government suppressed the evidence. See Blackmon v. Scott,

(5th Cir. 1994). Beadles argues that the evidence

was insufficient to convict him because he did not commit a crime

under Texas law; however, the evidence does support the conclusion

that Beadles conspired to evade the Texas diesel fuel excise tax by

using the mails as well as wire transmissions to accomplish the

scheme. The evidence also establishes that Beadles laundered the

profits derived from the tax evasion scheme. See Jackson v.

Virginia,

(1979).

Beadles argues next that the indictment was insufficient, but

he fails to present exceptional circumstances entitling him to

challenge of the sufficiency of the indictment. See United States

v. Prince,

(5th Cir. 1986). Beadles also

insists that (1) federal venue was improper, (2) it is impossible

to defraud the state comptroller under Texas law, and (3) the court

gave prejudicial jury instructions. These three issues are raised

for the first time on appeal and will not be considered. See

2 Leverette v. Louisville Ladder Co.,

(5th Cir.

1999), petition for cert. filed, (Nov. 24, 1999)(No. 99-884).

Finally, Beadles alleges several instances of ineffective

assistance of counsel; however, he fails to make the requisite

showing of deficiency and prejudice. See Strickland v. Washington,

(1984).

The district court’s denial of Beadles’ § 2255 motion is

AFFIRMED.

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