                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              October 7, 2004
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-30812



UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

versus


CALVIN BROWN, JR.,

                                                Defendant-Appellant



           Appeal from the United States District Court
               for the Eastern District of Louisiana
                         (No. 02-CV-3825-B)
                          (No. 98-CR-194-3)



Before WIENER and PRADO, Circuit Judges, and LITTLE*, District
Judge.

PER CURIAM:**

     Plaintiff-Appellant Calvin Brown, Jr., federal inmate no.

26239-034, was convicted by a jury for possession and conspiracy to

possess with the intent to distribute cocaine and was sentenced to

130 months of imprisonment.     We granted Brown a certificate of



*
  District Judge, Western District of Louisiana, sitting by
designation.
**
  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opinion should not be published and is not precedent except under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.
appealability (COA) to appeal the district court’s denial of his 28

U.S.C. § 2255 motion to vacate, set aside or correct his sentence.

Brown contends that the district court erred in denying his claim

that his trial counsel was ineffective.                     Brown asserts that a

Louisiana court’s authorization for law-enforcement officials to

gather evidence using a wiretap was granted in contravention of

that   state’s      law,   so   the    wiretap       evidence   should   have       been

suppressed before trial.            Brown’s counsel erred, he charges, for

failing to challenge the admission of the wiretap evidence on this

ground and thereby failing to preserve the issue for appeal.

       Under 18 U.S.C. § 2516(2), a state court may authorize a

wiretap in conformity with 18 U.S.C. § 2518 and with the applicable

state wiretap authorization statute.                   The Louisiana Electronic

Surveillance Act requires judges to question an informant before

granting a wiretap authorization if the application relies on the

informant’s statements to establish probable cause.1                         On direct

appeal   to   us,    we    agreed     with       Brown’s   argument   that    (1)    the

Louisiana court failed to examine the confidential informants

before granting the wiretap authorization, and (2) the confidential

informants’ information was essential to the required finding of


1
  LA. REV. STAT. ANN. § 15.1310 (West 1992). See also Louisiana
v. Neisler, 666 So. 2d 1064, 1067-69 (La. 1996) (refusing to
require suppression of evidence gained through a wiretap despite
the authorizing court’s failure to examine confidential
informants whose statements were used in support of the
application because other evidence supported the issuing court’s
finding of probable cause).

                                             2
probable cause.2     We did not reverse Brown’s conviction, however,

because the wiretap authorization was supported by probable cause

and was valid under all federal law except for the provision making

the Louisiana statute applicable.            In the absence of a timely

objection, our review was for plain error, which we concluded the

district     court   had   not   committed   in   admitting   the   wiretap

evidence.3

       To prevail on a § 2255 claim for ineffective assistance of

counsel, a petitioner must demonstrate that his counsel committed

errors so grave as to deprive him of his Sixth Amendment right to

a fair trial and that his counsel’s deficient performance actually

prejudiced the proceedings.4       Counsel’s deficient performance must

fall below the standard for reasonably effective assistance.5

Judicial scrutiny of counsel’s performance is highly deferential;

the court must judge the reasonableness of counsel’s performance in

light of all the circumstances at the time.6            We conclude that

Brown has not shown that his counsel’s mistake rises to the level

of constitutionally deficient assistance.

       The attorney whose performance is at issue in this petition



2
    U.S. v. Brown, No. 00-30356 at 15 (June 7, 2001)(unpublished).
3
    Id. at 16.
4
    Strickland v. Washington, 466 U.S. 668, 687 (1984).
5
    Id. at 688.
6
    Id. at 690.

                                      3
was third in a succession of attorneys who represented Brown during

his criminal trial and appeal.7   The trial court appointed counsel

in question approximately seven weeks before Brown’s trial. Before

this counsel was appointed, Brown’s second attorney had filed, and

the magistrate judge had ruled on, a detailed motion to suppress

the wiretap evidence.     The motion raised four arguments that the

wiretap authorization did not comply with state law and charged

that the authorization was unsupported by probable cause.              The

motion did not, however, specifically allege that the issuing state

judge had relied on the statements of confidential informants whom

the judge had not examined.    The magistrate judge rejected Brown’s

arguments and refused to exclude the evidence, noting that, even if

the motion was unsupported by probable cause, the officers’ good

faith reliance on the wiretap authorization would also justify

admitting the evidence.8

     Under   these   circumstances,   we   cannot   agree   that   Brown’s

subsequent counsel provided ineffective assistance.            Counsel’s

predecessor had made lengthy and detailed arguments for suppressing

the wiretap evidence, each of which was rejected by the court.

7
  Brown’s first attorney was the Hon. Jay Zainey, United States
District Court Judge for the Eastern District of Louisiana,
formerly panel attorney for the Federal Public Defender’s Office.

8
  The magistrate judge apparently mistakenly believed that only
federal law governed the admissibility of wiretap evidence in
federal court and therefore considered Brown’s state law attacks
under parallel provisions of federal electronic surveillance law.


                                  4
Further, the court offered the separate, additional ground of good

faith, on which it would uphold the wiretap evidence regardless of

the authorization’s validity.           Without any controlling precedent

requiring suppression of the evidence because of the state judge’s

failure to examine police informants, Brown’s next lawyer was not

unreasonable in not filing yet another attack on the wiretap

evidence.9      Indeed, we ruled on direct appeal that “the error was

not apparent on the face of the wiretap authorization” because it

was supported by probable cause and was valid under federal law.

We    do not    require     appellate   counsel         to    raise   every       possible

nonfrivolous claim on appeal; neither do we second-guess trial

counsel’s decision not to revisit an issue previously briefed

extensively and decided adversely to the client.10

       Brown also seeks to raise an ineffective-assistance-of-counsel

issue    that   was   not    raised    in       his    28   U.S.C.    §    2255   motion.

Specifically, he argues that his counsel should have challenged the

jurisdiction of the Louisiana state judge who approved the wiretap

authorizations,       because    not    all       of    the   phone       numbers   under

surveillance were located within St. Tammany Parish.                        We will not

9
  The Neisler court refused to create a categorical rule
requiring exclusion of evidence when a state judge did not
examine confidential informants in contravention of LA. REV. STAT.
ANN. § 15.1310. 666 So. 2d at 1065. “[E]ven when there is a
clear violation of the statutory requirements of Section
1310B(1), the necessity for suppressing evidence under the
exclusionary rule of Section 1307 is an entirely separate
question.” Id. at 1068.
10
     See Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998).

                                            5
entertain this claim because our review is restricted to the issue

or issues for which a COA was granted.    28 U.S.C. § 2253(c)(3);

Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).

AFFIRMED.




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