IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 98-60474 Summary Calendar _____________________

CLYDE WENDALL SMITH,

Petitioner-Appellant,

versus

WALTER BOOKER; MIKE MOORE, Attorney General, State of Mississippi,

Respondents-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi USDC No. m:98-CV-58-S-B _________________________________________________________________

January 12, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Clyde Wendall Smith, Mississippi prisoner #44932, appeals the

dismissal of his

petition, in which he raised five

ineffective assistance claims. The district court granted a

certificate of appealability (“COA”) on each claim.

Smith does not renew his claim that counsel was ineffective in

failing to move for a severance, and the claim is waived due to his

failure to brief it. See Yohey v. Collins,

(5th Cir. 1993); Fed. R. App. P. 28(a). For the first time on

appeal, he argues that counsel was ineffective in failing to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. present evidence that the use of brass knuckles would leave

permanent scars and in failing to point out that the victim, Lynn

Robinson, did not have any such scars. Not only does the COA not

include this issue, but this court will not consider a new theory

of relief raised for the first time on appeal. See Brown v.

Lensing,

, 1032 n.10 (5th Cir. 1999); Leverette v.

Louisville Ladder Co.,

(5th Cir. 1999).

Smith’s claim that counsel was ineffective in failing to call

Officer Thurmond fails because, even if it is assumed that counsel

was deficient in not securing Officer Thurmond’s presence, Smith

has not demonstrated any resulting prejudice since the substance of

the proposed testimony was presented via counsel’s cross-

examination of Patricia Robinson. See Strickland v. Washington,

(1984). Smith’s claim that counsel was

ineffective in failing to impeach Patricia Robinson also fails

because he concedes that counsel cross-examined her regarding her

prior inconsistent statements. See

. To the extent that

Smith argues that counsel should have attempted to introduce the

prior statements formally into evidence, the claim fails because he

cannot demonstrate any prejudice flowing from the alleged error.

. Smith’s claim that counsel was ineffective in

failing to impeach Wendell Wright with prior inconsistent

statements also fails for lack of prejudice.

The claim that

counsel breached the duty of loyalty is simply a restatement of

2 Smith’s other ineffective assistance claims and fails for the

reasons already stated.

A F F I R M E D.

3