                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             February 10, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 02-21135


     UNITED STATES OF AMERICA

                                     Plaintiff - Appellee

     v.

     SERGIO ALANIS, also known as Sergio Alaniz, also known as La
     Paca

                                     Defendant - Appellant

_________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, Houston
                         No. H-97-CR-153-9
_________________________________________________________________

Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.

PER CURIAM:*

     Sergio Alanis, a federal prisoner, appeals the district

court’s dismissal of his § 2255 motion.   He attacks his

convictions and sentences on several grounds, including

ineffective assistance of counsel, prosecutorial misconduct, and

violations of Apprendi v. New Jersey, 530 U.S. 466 (2000).        We

affirm in part, vacate in part, and remand to the district court


     *
        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that this opinion should not be published and is not precedent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.

                                 1
for further factual development on Alanis’s ineffective-

assistance-of-trial-counsel claim.

                           I. Background

     In February 1999, a federal jury convicted Sergio Alanis of

(1) conducting a continuing criminal enterprise (“CCE”), (2) two

counts of aiding and abetting possession with intent to

distribute marijuana, (3) money laundering, and (4) conspiracy to

launder money.   Later that spring, the district court sentenced

him to, inter alia, 240 months in prison on each count and

ordered that the sentences be served concurrently.   In September

2001, after unsuccessfully appealing his convictions, Alanis

filed a motion to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255.   The district court denied Alanis’s

§ 2255 motion without holding a hearing on any of his claims.

     Following the district court’s refusal to grant Alanis a

certificate of appealability (a “COA”), we granted Alanis a COA

regarding the following issues: (1) whether his trial counsel

rendered ineffective assistance by failing to file a motion to

suppress the evidence obtained during the warrantless search of

Alanis’s house in light of David Pena-Garcia’s affidavit

regarding that search; (2) whether his trial counsel’s alleged

ineffectiveness concerning the Fourth Amendment claim suffices to

overcome Alanis’s procedural default on that claim; (3) whether

the sworn affidavit from Jose Garcia is newly discovered evidence


                                 2
that proves that the prosecution knowingly used perjured

testimony at Alanis’s trial; (4) whether the district court

should have conducted an evidentiary hearing to consider whether

the prosecution knowingly used perjured testimony at Alanis’s

trial; (5) whether Alanis’s convictions for aiding and abetting

possession with intent to distribute marijuana are invalid under

Apprendi because a drug quantity was not alleged in the

indictment or submitted to the jury; and (6) whether his

appellate counsel was ineffective for failing to raise the

Apprendi issue on direct appeal.

                     II. Standard of Review

     When considering a district court’s denial of a § 2255

motion, we review factual findings for clear error and

conclusions of law de novo.   See United States v. Stricklin, 290

F.3d 748, 750 (5th Cir. 2002).    A district court’s conclusions

regarding a claim of ineffective assistance of counsel involve

mixed questions of law and fact, which we review de novo.     See

United States v. Bass, 310 F.3d 321, 325 (5th Cir. 2002).

Further, we review for abuse of discretion the district court’s

decision not to hold a hearing.        See United States v.

Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).

                         III. Discussion

A.   Trial Counsel’s Failure to Pursue the Fourth Amendment Claim



                                   3
     We granted a COA regarding whether Alanis’s trial counsel

rendered ineffective assistance by failing to file a motion to

suppress the evidence obtained during the warrantless search of

Alanis’s house in light of David Pena-Garcia’s affidavit

regarding that search.1   To obtain relief on his ineffective-

assistance-of-counsel claim, Alanis must show both that his

counsel’s performance was deficient (i.e., that it “fell below an

objective standard of reasonableness”) and that he was prejudiced

by his counsel’s deficient performance.    See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984).    Regarding the first

prong, we must be “highly deferential” when evaluating counsel’s

performance; a strong presumption exists that the representation

was reasonable.   Id. at 689.   “[T]he defendant must overcome the

presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.”    Id. (citation and

internal quotation marks omitted).    If Alanis shows that his


     1
          Alanis contended on direct appeal that his trial
counsel rendered constitutionally ineffective assistance. We
declined to consider the claim, citing the general rule “that a
claim of ineffective assistance of counsel cannot be resolved on
direct appeal when the claim has not been raised before the
district court since no opportunity existed to develop the record
on the merits of the allegations.” United States v. Alanis, No.
99-20153, slip op. at 4 (5th Cir. Sept. 25, 2000) (per curiam)
(citing United States v. Navejar, 963 F.2d 732, 735 (5th Cir.
1992)); cf. Massaro v. United States, 123 S. Ct. 1690, 1696
(2003) (holding “that failure to raise an ineffective-
assistance-of-counsel claim on direct appeal does not bar the
claim from being brought in a later, appropriate proceeding under
§ 2255”).

                                  4
counsel’s performance was deficient, he then must demonstrate

prejudice.    See id. at 691, 693-94.   To do so, he “must show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.   A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”     Id. at 694.

Further, the Supreme Court has refined the prejudice inquiry in

the context of ineffective-assistance claims based on counsel’s

failure to file a motion to suppress:

     Where defense counsel’s failure to litigate a Fourth
     Amendment claim competently is the principal allegation
     of ineffectiveness, the defendant must also prove that
     his Fourth Amendment claim is meritorious and that there
     is a reasonable probability that the verdict would have
     been different absent the excludable evidence in order to
     demonstrate actual prejudice.

Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).

     At trial, a police officer testified that Pena-Garcia,

Alanis’s father-in-law, informed the officer that he was in

control of Alanis’s residence and verbally consented to a search

of the premises, during which officers seized $40,970 in

currency.    But, when Alanis filed his § 2255 motion in the

district court, Alanis submitted a sworn, post-conviction

affidavit from Pena-Garcia stating that he neither consented to

the search nor informed the officer that he was in control of the

premises.    Alanis contends that his trial counsel rendered

ineffective assistance because the lawyer failed to file a motion


                                  5
to suppress the evidence obtained during the warrantless search

of Alanis’s house.    He further asserts that his trial counsel was

ineffective for failing to investigate the validity of that

warrantless search.

     “A defendant who alleges a failure to investigate on the

part of his counsel must allege with specificity what the

investigation would have revealed and how it would have altered

the outcome of the trial.”    United States v. Green, 882 F.2d 999,

1003 (5th Cir. 1989).   Although Alanis fails to allege

specifically that Pena-Garcia was willing to testify on behalf of

Alanis during a suppression hearing, we liberally construe the

pleadings of those who proceed pro se.    See Haines v. Kerner, 404

U.S. 519, 520-21 (1972).   Alanis’s brief does assert that his

trial counsel’s decision not to file a suppression motion could

not have been the product of either a considered trial strategy

or a reasonable investigation.   According to Alanis, a non-

deficient lawyer would have explored the circumstances

surrounding the search, since it was conducted without a warrant

and the individual who allegedly consented to the search (Pena-

Garcia) refused to sign a written consent form.   Moreover, both

Alanis and Pena-Garcia allege that the search of Alanis’s house

was conducted without consent, and the record does not indicate

that Pena-Garcia would have testified otherwise if called for a

suppression hearing.


                                  6
     The district court concluded, however, that Alanis had not

satisfied either prong of the Strickland test.   First, defense

counsel’s performance was not deficient, according to the

district court, since——considering the officer’s testimony that

Pena-Garcia consented to the search and the substantial evidence

of money laundering——the decision not to file a motion to

suppress “can reasonably be attributed to trial strategy.”

Second, the court, assuming for the sake of argument that

counsel’s performance fell below an objective standard of

reasonableness, also concluded that Alanis had not shown that

counsel’s failure to move to suppress the currency prejudiced his

defense.   In the district court’s view, Alanis failed to prove

that he would have been found not guilty of money laundering,

since the government introduced substantial evidence at trial

regarding the money-laundering count.2   The district court’s

     2
          But the district court failed to consider that the
count of money laundering with which Alanis was charged and
convicted accused him of laundering the very currency found
during the now-disputed search. Specifically, count nine of the
second superceding indictment states the following:
          On or about January 26, 1994, in the Southern
     District of Texas and elsewhere, and within the
     jurisdiction of this Court,
          SERGIO ALANI[S], a/k/a Sergio Alaniz and La Paca,
     defendant herein . . . did knowingly and willfully
     conduct and attempt to conduct a financial transaction
     affecting interstate and foreign commerce, to wit, the
     transfer, delivery or other disposition of U.S. Currency,
     which involved the proceeds of a specified unlawful
     activity, namely, a violation of Title 21, United States
     Code, Sections 841, 846 and 848, with the intent to
     promote the carrying on of said specified unlawful

                                 7
opinion does not explicitly consider whether Alanis is entitled

to a hearing on this Sixth Amendment claim.

     A § 2255 motion “can be denied without a hearing only if the

motion, files, and records of the case conclusively show that the

prisoner is entitled to no relief.”   Bartholomew, 974 F.2d at 41;

accord Friedman v. United States, 588 F.2d 1010, 1014-15 (5th

Cir. 1979); see also 28 U.S.C. § 2255 (2000).   See generally

Machibroda v. United States, 368 U.S. 487, 494-96 (1962).       The

determination of whether to conduct a hearing on a § 2255 motion

involves two steps.   See Friedman, 588 F.2d at 1015.   First, the

court examines whether the record conclusively negates the

factual predicates asserted in support of the motion.     Id.     If

not, the court next determines whether the movant would be

entitled to relief if his factual allegations are true.     Id.       If

he would be entitled to relief, then the district court must

conduct a hearing to ascertain the validity of the movant’s

factual assertions.   On the state of this record, we conclude



     activity and knowing that the transaction was designed in
     whole and in part to conceal and disguise the nature, the
     location, the source, the ownership and the control of
     the proceeds of the specified unlawful activity, and that
     while conducting and attempting to conduct such financial
     transaction knew that the property involved in the
     financial transaction, that is, funds, amounting to
     approximately $40,970.00, represented the proceeds of
     some form of unlawful activity.
          In violation of Title 18, United States Code,
     Sections 2, 1956(a)(1)(A)(i) and 1956(a)(1)((B)(i).
(emphasis added).

                                 8
that further factual development is required (which may include a

hearing) regarding Alanis’s ineffective-assistance-of-trial-

counsel claim.

     Regarding the first step in the Friedman analysis, we find

that the record does not conclusively negate Alanis’s allegation

that his counsel’s decision not to file a motion to suppress was

the product of the lawyer’s failure to conduct a reasonable

investigation into the circumstances surrounding the search.

While “strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually

unchallengeable,” “strategic choices made after less than

complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations on

investigation.”   Strickland, 466 U.S. at 690-91.   In rejecting

Alanis’s claim, the district court determined that defense

counsel’s failure to file a motion to suppress was based on sound

trial strategy.   But the basis for this conclusion is not readily

apparent from the record.   If the testimony of the officer

conducting the search were uncontroverted, the district court’s

conclusion would certainly be warranted.   But the district court

failed to address (1) the conflict between Pena-Garcia’s

affidavit and the officer’s testimony, (2) whether that conflict

existed before trial, or (3) whether trial counsel was aware of,

or should have been aware of, the existence of that conflict.


                                 9
Thus, we know little about what, if any, investigation Alanis’s

trial counsel took before deciding not to file a motion to

suppress the seized currency, and thus, we cannot say that the

record conclusively negates Alanis’s factual allegations.

     Additionally, the record does not conclusively negate Pena-

Garcia’s allegation that he did not consent to the search.    The

affidavit conflicts with the officer’s trial testimony.

Consequently, further factual development is required to

determine who is telling the truth.   See Friedman, 588 F.2d at

1015 (stating “that contested fact issues in § 2255 cases cannot

be resolved on the basis of affidavits”); see also Taylor v.

United States, 287 F.3d 658, 660 (7th Cir. 2002) (stating, in the

context of a § 2255 motion, that “if the record contains an

evidentiary conflict on a material issue of fact, a judge must

hold an evidentiary hearing to decide who is telling the truth”).

The resolution of this factual question will determine the

validity of Alanis’s Fourth Amendment claim, which is an element

of the Strickland prejudice inquiry in these circumstances.

     We now turn to the second step of the Friedman

analysis——whether Alanis’s factual allegations would entitle him

to relief if true.   The government relies on United States v.

Chavez-Valencia, 116 F.3d 127, 134 (5th Cir. 1997), to support

the district court’s assertion that Alanis’s claim is facially

invalid because he “fails to demonstrate that [his lawyer’s]


                                10
election not to file a motion to suppress was not based on a

conscious or informed trial tactic.”    But the defendant in

Chavez-Valencia attempted to raise his ineffective-assistance-of-

counsel claim on direct appeal.    See id. at 128.    Because the

record was not sufficiently developed to allow us to review the

claim, we denied it without prejudice to collateral review,

stating that “[w]ithout knowing the reason for failing to file a

pretrial motion, this court is not positioned to review the

competency of representation Chavez received.”       Id. at 134.    We

are in a similar position here.    While we recognize “the

presumption that, under the circumstances, the challenged action

might be considered sound trial strategy,” Strickland, 466 U.S.

at 689 (internal quotation marks omitted), we also note that

“counsel has a duty to make reasonable investigations or to make

a reasonable decision that makes particular investigations

unnecessary,” id. at 691.   Again, at this stage, we do not know

what investigation Alanis’s trial counsel conducted regarding

whether to file a motion to suppress the currency.      Thus, we

cannot, without the benefit of further factual development, agree

that the attorney’s performance was not deficient.

     In addition, Alanis’s attack on his conviction for money

laundering cannot be rejected on the prejudice prong of

Strickland.   If it is determined that Pena-Garcia did not consent

to the search, exclusion of the currency would be appropriate,


                                  11
since the officers who searched Alanis’s residence did not obtain

a warrant.    Further, Alanis was convicted of laundering the very

currency found during the now-disputed search of his residence.3

A reasonable probability therefore exists that the suppression of

that currency would have prevented Alanis’s conviction for

laundering it.4   Consequently, if Alanis’s assertion that his

trial counsel failed to conduct a reasonable investigation before

deciding not to file a motion to suppress the currency proves

true, he will be entitled to relief.

     Considering Pena-Garcia’s affidavit, we cannot conclude that

Alanis’s “§ 2255 motion, together with the files and records of

the case, conclusively show that under no circumstances would

[Alanis] be entitled to relief” from his conviction for money

laundering.    Friedman, 588 F.2d at 1017.   As we stated in

Friedman,

     We   do   not,   of    course,   pretend    to   prejudge
     this . . . issue . . . . Nor do we predict or intimate
     the legal consequences of any findings or holdings on the
     matter[] remanded for further hearing. The point is that

     3
            See supra note 2.
     4
          Alanis also contends that the admission of the currency
significantly influenced the results concerning his other counts
of conviction. The district court did not explicitly find that
Alanis had failed to satisfy Strickland’s prejudice requirement
regarding his convictions on the other counts. Nevertheless, our
review of the record reveals that substantial evidence, besides
the seized currency, supports the other counts of conviction.
Accordingly, we affirm the district court’s rejection of Alanis’s
Sixth Amendment claim insofar as it relates to his other counts
of conviction.

                                 12
      we do not know, nor does the District Court know, whether
      [Defendant]’s allegations are indeed true and whether, as
      a consequence, he was unconstitutionally deprived
      of . . . effective assistance of counsel when he was
      convicted and sentenced.

Id.   Accordingly, we remand for further factual development on

this claim.

B.    Unconstitutional Search and Seizure

      In his § 2255 motion, Alanis contends that his conviction

was obtained through the use of evidence (namely, the currency

discussed above) seized during an unconstitutional search.

Because Alanis raised this claim for the first time in his § 2255

motion, his claim is procedurally barred unless he can show “both

‘cause’ for his procedural default, and ‘actual prejudice’

resulting from the error.”   United States v. Shaid, 937 F.2d 228,

232 (5th Cir. 1991) (en banc).   “[A]bsent unusual circumstances,

ineffective assistance of counsel, if shown, is sufficient to

establish the cause and prejudice necessary to overcome a

procedural default.”   United States v. Walker, 68 F.3d 931, 934

(5th Cir. 1995).   Thus, we granted a COA concerning whether

Alanis’s trial counsel’s alleged ineffectiveness constitutes both

cause for Alanis’s failure to challenge the search and seizure

during his criminal proceedings and actual prejudice due to

counsel’s alleged error.

      Even if he can show ineffective assistance and thereby

overcome the procedural bar, Alanis’s Fourth Amendment claim


                                 13
probably is not cognizable in this § 2255 proceeding.     The

Supreme Court held in Stone v. Powell, 428 U.S. 465, 494-95 &

n.37 (1976), that state prisoners collaterally attacking their

convictions under § 2254 cannot obtain relief for violations of

the Fourth Amendment exclusionary rule when the prisoner was

provided a full and fair opportunity to litigate the Fourth

Amendment issue in the state courts.     Interpreting the “full-and-

fair-opportunity” requirement in the § 2254 context, we have

stated that when a defendant fails to raise his Fourth Amendment

claim at trial (as occurred here), then Stone precludes habeas

relief on Fourth Amendment grounds, even though no state hearing

was held on the claim.   See Caver v. Alabama, 577 F.2d 1188, 1192

(5th Cir. 1978) (“An ‘opportunity for full and fair litigation’

means just that: an opportunity.     If a state provides the

processes whereby a defendant can obtain full and fair litigation

of a fourth amendment claim, Stone v. Powell bars federal habeas

corpus consideration of that claim whether or not the defendant

employs those processes.”).5   We have also held that the Stone

rule can be raised by a court sua sponte.     See Davis v.

Blackburn, 803 F.2d 1371, 1372-73 (5th Cir. 1986) (“[W]e are

obliged to apply Stone as a prudential limitation on the exercise

of our jurisdiction . . . , even if it must be raised sua

     5
          Alanis fails to allege that the district court would
not have provided a full and fair opportunity for him to litigate
his Fourth Amendment claim had he raised it.

                                14
sponte.”).   Thus, it would appear that the government’s failure

to assert the Stone bar does not prevent us from applying it to

Alanis’s claim.   But the applicability of Stone in § 2255

proceedings is somewhat unclear.     While the Supreme Court has not

definitively resolved the question, dicta in United States v.

Johnson, 457 U.S. 537, 562 n.20 (1982), indicates that the

doctrine does apply here.6

     In light of our disposition of the ineffective-assistance-

of-trial-counsel claim, however, we do not need either to

consider the merits of Alanis’s Fourth Amendment claim or to

decide whether Stone would preclude it.     If the district court

determines that Alanis’s trial counsel rendered constitutionally

ineffective assistance due to the lawyer’s failure to file a

motion to suppress, Alanis will have satisfied the cause-and-

prejudice standard, see Walker, 68 F.3d at 934, which would allow

him to pursue his Fourth Amendment claim.    In other words,

Alanis’s Fourth Amendment claim is procedurally barred unless he

first succeeds on his Sixth Amendment claim.    Further, if he

succeeds on his Sixth Amendment claim, he will have established

the validity of his Fourth Amendment claim because the merits of

his Fourth Amendment claim are an element of his ineffective-

     6
          Regardless whether the rule precludes his Fourth
Amendment claim, Stone does not bar Alanis’s Sixth Amendment
claim that his trial counsel’s failure to file a motion to
suppress the currency amounted to constitutionally ineffective
assistance. See Kimmelman, 477 U.S. at 382-83.

                                15
assistance-of-trial-counsel claim.   See Kimmelman, 477 U.S. at

375, 382.7   Finally, the relief sought in Alanis’s Fourth

Amendment claim is identical to the relief sought in his

ineffective-assistance-of-trial-counsel claim.   Accordingly,

since (1) Alanis cannot pursue his Fourth Amendment claim unless

he prevails on his Sixth Amendment claim8 and (2) if he prevails

on his Sixth Amendment claim he will be entitled to all relief

that would be available to him if he succeeded on his Fourth

Amendment claim, we need not concern ourselves further with

Alanis’s Fourth Amendment claim.

C.   Prosecutorial Misconduct

     Alanis contends that the government prosecutor knowingly

elicited false trial testimony from government witness Jose

Garcia.   He attached to his § 2255 motion a sworn, post-

conviction affidavit from Jose Garcia supporting his assertion.

Due process is violated when the prosecution knowingly offers

false testimony to obtain a conviction and fails to correct such

testimony.   Tucker v. Johnson, 242 F.3d 617, 625-26 (5th Cir.

     7
          Note also that if Alanis can show——as required by
Strickland——that there is a reasonable probability that, but for
counsel’s failure to file a motion to suppress, he would not have
been convicted on one or more of the counts, he will have
conclusively shown that the admission of the currency was not
harmless regarding such count(s). See Kyles v. Whitley, 514 U.S.
419, 435-36 (1995).
     8
          Even then, Stone probably precludes Alanis from
litigating his Fourth Amendment exclusionary-rule claim in this
§ 2255 proceeding.

                                16
2001); see also Burton v. United States, 237 F.3d 490, 493 (5th

Cir. 2000).    To obtain relief, Alanis must prove (1) that the

statements in question are false; (2) that the government knew of

their falsity; and (3) that the statements were material.

Tucker, 242 F.3d at 626.

     Because Alanis failed to raise this contention either at

trial or on direct appeal, he must first show “both ‘cause’ for

his procedural default, and ‘actual prejudice’ resulting from the

error.”    Shaid, 937 F.2d at 232.        If Garcia’s affidavit was not

available to Alanis until after his direct appeal was decided,

this would establish cause for his failure to raise this claim

earlier.   See Murray v. Carrier, 477 U.S. 478, 488 (1986)

(stating “that a showing that the factual or legal basis for a

claim was not reasonably available to counsel” satisfies the

cause requirement for overcoming a procedural default).              Whether

Alanis can establish actual prejudice will depend on the validity

of his prosecutorial-misconduct claim, for the Supreme Court has

treated the materiality element of such a claim “as coterminous

with the ‘prejudice’ prong of the procedural default doctrine.”

2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE   AND

PROCEDURE § 26.3c, at 1221-22 (4th ed. 2001) (citing cases).

     Alanis’s assertion that the government knowingly elicited

false testimony was one of several allegations of government

misconduct presented in his § 2255 motion.          In its opinion, the


                                     17
district court did not mention the affidavit from Garcia.

Nevertheless, the court rejected Alanis’s government-misconduct

claim in its entirety, stating that the claim was unsupported and

procedurally barred.   Thus, it implicitly concluded that each of

Alanis’s allegations of misconduct lacks merit.   We affirm the

district court’s ruling on this issue because we find that, even

if Alanis’s allegations concerning the Garcia affidavit are true,

Alanis would not be entitled to relief.   This is because, as the

government shows in its brief, Garcia’s testimony was not

material.

     Garcia’s testimony was relevant to the CCE count and one of

the counts for aiding and abetting possession with intent to

distribute marijuana (i.e., the count charging Alanis with aiding

and abetting the possession with intent to distribute marijuana

on or about November 14, 1996, which was one of the predicate

acts that formed the basis of his CCE conviction).   On November

14, 1996, Texas state troopers arrested Garcia, who was driving a

truck loaded with 597 pounds of marijuana.    Garcia testified at

trial that Alanis hired him to drive the truck containing the

marijuana.   In his subsequent affidavit, however, Garcia stated

that, when he testified at trial, he knew nothing about Alanis’s

involvement with the shipment of marijuana.   Instead, Garcia

asserted in the affidavit that the prosecutor instructed him to

implicate Alanis and that Garcia did so in return for leniency.


                                18
     Perjured testimony is material “if there is any reasonable

likelihood that the false testimony could have affected the

judgment of the jury.”   Creel v. Johnson, 162 F.3d 385, 391 (5th

Cir. 1998) (citations and internal quotation marks omitted).

Garcia’s allegedly false trial testimony concerning Alanis’s

involvement with the November 1996 shipment of marijuana is not

material because at trial the government introduced substantial

additional evidence connecting Alanis both to the shipment and to

Garcia.   For example, at trial, an FBI agent testified about

several electronically intercepted telephone conversations

between Garcia and Alanis during which the two men discussed the

November 1996 shipment of drugs.     Moreover, in his closing

argument, the prosecutor did not once mention Garcia’s testimony

in connection with the November 1996 aiding and abetting

possession with intent to distribute count.9    Accordingly,

because Garcia’s allegedly false testimony was not material to

the jury’s verdicts, we affirm the district court’s judgment

regarding Alanis’s prosecutorial misconduct claim.10

D.   Apprendi Violation and Ineffective Assistance of Counsel on
     Appeal


     9
          And he only referenced Garcia’s testimony twice,
briefly, in discussing the CCE count.
     10
          As we find that Alanis’s prosecutorial misconduct
allegation is without merit, we consequently reject Alanis’s
contention that he should be allowed an evidentiary hearing on
this issue.

                                19
     We also granted a COA regarding Alanis’s contention that his

convictions for aiding and abetting possession with intent to

distribute marijuana are invalid under Apprendi v. New Jersey,

530 U.S. 466 (2000), because a drug quantity was not alleged in

the indictment or submitted to the jury.11    Because Apprendi was

issued approximately three months before Alanis’s direct appeal

was decided, the decision was applicable to Alanis’s judgment of

conviction.   See Griffith v. Kentucky, 479 U.S. 314, 328 (1987)

(holding that new rules are retroactively applicable to cases

“pending on direct review or not yet final”).    But, as this issue

is raised for the first time in his § 2255 motion, Alanis is

required to show both cause and prejudice for failing to raise

this contention on direct appeal.     See Shaid, 937 F.2d at 232.

Although the government’s brief to this court does not mention

Alanis’s procedural default regarding the Apprendi issue, we can

raise the issue sua sponte because Alanis was given a reasonable

opportunity to argue against imposition of the bar in district

court.12   See United States v. Willis, 273 F.3d 592, 596-97 (5th

Cir. 2001).


     11
          In Apprendi, the Supreme Court held that due process
requires that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” 530 U.S. at 490.
     12
          In its motion to dismiss, the government asserted that
Alanis had defaulted on his Apprendi claim.

                                 20
     Alanis contended in district court that his appellate

counsel was ineffective for failing to raise the Apprendi issue

on direct appeal and that such ineffectiveness overcomes the

procedural bar.13   The Strickland standard also applies to the

effectiveness of appellate counsel.   See Teague v. Scott, 60 F.3d

1167, 1173-74 (5th Cir. 1995).   Alanis was sentenced on the CCE

count to a concurrent sentence of equal length to the sentences

challenged under Apprendi, and we have rejected each of Alanis’s

attacks on his CCE conviction and sentence.    Consequently, he

cannot show prejudice under Strickland.     See United States v.

Tolliver, 61 F.3d 1189, 1223 & n.54 (5th Cir. 1995) (holding that

“dual sentencing is of no real consequence,” and thus is not

prejudicial under Strickland, when a defendant is serving a life

sentence on an unchallenged count of conviction), vacated on

other grounds sub. nom., Sterling v. United States, 516 U.S. 1105

(1996).   Alanis’s claim of ineffective-assistance-of-appellate-

counsel therefore fails, and thus, his Apprendi challenge is

procedurally barred.

                           IV. Conclusion

     Accordingly, we VACATE the district court’s judgment insofar

as it denied relief on Alanis’s claim of ineffective assistance

of trial counsel regarding counsel’s alleged failure to

investigate and to challenge the warrantless search and REMAND

     13
           Thus, we granted him a COA on this issue as well.

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this case to the district court for further factual development

concerning that claim.   The district court’s judgment regarding

Alanis’s remaining claims is AFFIRMED.

     AFFIRMED IN PART; VACATED and REMANDED IN PART.




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