                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 1, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-51005
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

OLUBANJI MILTON MACAULAY, also known as Benji Macaulay,
also known as Reginald Eugene Harris,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                           (3:04-CV-53 )
                           (3:01-CR-368)
                       --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Olubanji Milton Macaulay was convicted by

a jury on three counts of perjury and five counts of falsely

asserting that he was a United States citizen.    Macaulay filed a

motion to vacate, set aside, or correct his sentence, pursuant to

28 U.S.C. § 2255.   The district court denied Macaulay’s motion but

granted a certificate of appealability (COA) on the issue whether

his trial counsel rendered ineffective assistance by interfering

with his right to testify.

     *
       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this opinion should not be published and is not precedent except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.
      To prevail on a claim of ineffective assistance of counsel,

Macaulay must show that counsel’s performance was deficient and

that the deficient performance prejudiced his defense.              Strickland

v. Washington, 466 U.S. 668, 687-94 (1984).              Failure to establish

either deficient performance or prejudice is fatal to the claim.

Id. at 697.

      The district court determined that counsel’s advice against

testifying did not render his performance deficient, considering

Macaulay’s prior convictions involving mendacity and the lack of

evidentiary support for his claim of citizenship.             Macaulay states

that he would have testified that he had lied in the past but that

he sincerely believed in his citizenship.            He acknowledges that he

had   no   evidence   to    support      this   claim,   either   documents    or

testimony.      Given      his   prior    criminal   history,     his   lack   of

evidentiary support, and the anticipated nature of his potential

testimony, counsel’s advice against testifying was sound trial

strategy.    See United States v. Mullins, 315 F.3d 449, 453-54 (5th

Cir. 2002).

      The district court’s ruling, including the sentence imposed,

are

AFFIRMED.




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