IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20738 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARRELL WAYNE ADAMS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (H-99-CV-1283) (H-94-CR-121-1) -------------------- March 14, 2003

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Darrell Wayne Adams, federal prisoner #

66135-079, has filed a motion to expand the district court’s grant

of a certificate of appealability (COA) to include claims that his

counsel rendered ineffective assistance and that the prosecution

engaged in misconduct. The district court granted COA on the issue

whether application of the rule of Apprendi v. New Jersey,

(2000), to cases on initial collateral review was barred by

Teague v. Lane,

(1989). We address below all of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Adams’s claims, rather than first determining whether to expand the

grant of COA and then addressing Adams’s appeal of the issue for

which COA was granted by the district court. See United States v.

Kimler,

(5th Cir. 1998); United States v. Kimler,

(5th Cir. 1999).

To obtain a COA, Adams must make a substantial showing of the

denial of a constitutional right. See

(c)(2).

Adams first contends that the government engaged in misconduct by

instructing its witness, Bosia Cash, to testify falsely. To obtain

relief, Adams must show that (1) the testimony offered by the

government was actually false, (2) the government knew it was

false, and (3) the testimony was material. See Faulder v. Johnson,

(5th Cir. 1996). Adams has failed to challenge

the district court’s determination that Cash’s alleged falsehoods

either were not material or that his trial testimony was not in

conflict with his affidavit. Adams has therefore waived these

issues. See Yohey v. Collins,

(5th Cir.

1993). As such, he has failed to show entitlement to relief on his

claim that the government engaged in misconduct with respect to

Cash’s testimony.

As Adams has also failed to show that Cash’s testimony was

proscribed by FED. R. EVID. 404(b), he has failed to show that his

trial counsel was ineffective. Counsel is not ineffective for

failing to raise meritless objections. See Clark v. Collins,

(5th Cir. 1994).

2 We will not consider Adams’s claim of prosecutorial misconduct

with respect to witness Kimela Lomax, because we considered that

issue in Adams’s direct appeal. See United States v. Johnston,

(5th Cir. 1997). Issues determined on direct

appeal need not be reconsidered in a

motion. See

Buckelew v. United States,

(5th Cir. 1978).

With respect to his contention that his trial counsel was

ineffective for failing to make timely objections during Lomax’s

testimony, Adams has failed to make a substantial showing of

prejudice. See Strickland v. Washington,

(1984);

Lockhart v. Fretwell,

(1993). Adams has also

failed to make an adequate showing that prejudice resulted from

counsel’s failure to object to the playing of an unredacted tape

that revealed his criminal history. Neither has Adams shown that

any of counsel’s alleged deficiencies with respect to a motion in

limine rise to the level of a constitutional violation.

We will not consider Adams’s claims of prosecutorial

misconduct and ineffective assistance with respect to the testimony

of Roosevelt Gatterson, because Adams has failed to provide

citations to the relevant portions of the record. The appellant’s

argument must contain “his contentions and the reasons for them,

with citations to the authorities and parts of the record on which

the appellant relies.” FED. R. APP. P. 28(a)(9)(A); United States

v. Tomblin,

, 1376 n.13 (5th Cir. 1995).

3 Adams’s allegations regarding his trial counsel’s manipulation

to obtain a pair of tennis shoes, his general disinterest in trial

proceedings, and his pursuit of an under-the-table fee, even if

true, are insufficient to establish either deficient performance or

prejudice, which are required to show a constitutional violation.

See Strickland,

. Neither has Adams shown that

counsel was ineffective for failing to hire an investigator. See

United States v. Green,

(5th Cir. 1989).

Finally, because Adams has failed to show any instances of

deficient performance that were prejudicial to his defense, he

cannot show prejudicial cumulative error. See Westley v. Johnson,

(5th Cir. 1996). Accordingly, Adams’s motion to

expand COA is DENIED.

We now turn to the issue on which COA was granted by the

district court. This court has definitively held that Apprendi is

not retroactively applicable to cases on initial collateral review.

See United States v. Brown,

(5th Cir. 2002).

Thus, Adams’s Apprendi-based claim fails.

The district court’s denial of Adams’s

motion

is AFFIRMED.

AFFIRMED; MOTION TO EXPAND COA DENIED. S:\OPINIONS\UNPUB\01\01-20738.0.wpd 4/29/04 3:18 pm

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