               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                          __________________

                              No. 95-30047
                         Conference Calendar
                           __________________

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JAMES ALONZO BENJAMIN,

                                         Defendant-Appellant.

                        - - - - - - - - - -
           Appeal from the United States District Court
               for the Wester District of Louisiana
                 USDC No. 94-CV-1882 (92-CR-20007)
                        - - - - - - - - - -
                           March 21, 1995
Before GARWOOD, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     IT IS ORDERED that James Alonzo Benjamin's motion for leave

to proceed in forma pauperis is DENIED.     Benjamin has not shown

that he will present a nonfrivolous issue on appeal.      Carson v.

Polley, 689 F.2d 562, 586 (5th Cir. 1982).      Because the appeal is

frivolous, it is DISMISSED.     See 5th Cir. R. 42.2.

     Benjamin argues that he was denied effective assistance of

counsel because his attorney was preoccupied with his wife's

illness and therefore did not challenge the search as an illegal,

pretextual stop.   To establish an ineffective assistance of

     *
          Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
                            No. 95-30047
                                 -2-


counsel claim a movant must demonstrate that his attorney's

performance was deficient and that the deficient performance

prejudiced his defense.    Strickland v. Washington, 466 U.S. 668,

687 (1984).   To establish prejudice the movant must show that

counsel's errors were so serious as to render the proceedings

unreliable and fundamentally unfair.    Lockhart v. Fretwell, 113

S. Ct. 838, 844 (1993).

     Benjamin argues that his attorney was ineffective for not

arguing in the district court that the officer who made the

initial stop had narcotic interdiction duties but no traffic

enforcement duties.    He cannot demonstrate prejudice.   The

district court found that the arresting officer had a legitimate

basis for stopping the truck and, therefore, it is irrelevant

whether the officer's primary function was narcotics

interdiction.   See United States v. Shabazz, 993 F.2d 431, 435

n.3 (5th Cir. 1993).

     Benjamin has failed to raise or brief the claims that

counsel was ineffective for failing to request a severance or

cautionary instruction and for failing to present mitigating

evidence at sentencing.    Therefore, they are considered

abandoned.    See Evans v. City of Marlin, Tex., 986 F.2d 104, 106

n.1 (5th Cir. 1993).

     Benjamin also argues that he was denied due process because

the district court denied his motion before he filed his timely

response to the Government's answer.    On appeal Benjamin argues

only that his attorney failed to present the pretextual stop

issue, but Benjamin cannot establish Strickland prejudice.
                          No. 95-30047
                               -3-


Nothing in Benjamin's response to the Government's answer would

alter the result, see Smith v. Collins, 964 F.2d 483, 485 (5th

Cir. 1992), and any error in denying the motion before Benjamin

had an opportunity to respond was harmless.

     Appeal DISMISSED.
