                              REVISED
                   United States Court of Appeals,

                            Fifth Circuit.

                            No. 95-11229.

          UNITED STATES of America, Plaintiff-Appellee,

                                  v.

                  Ruben ROCHA, Defendant-Appellant.

                            April 3, 1997.

Appeal from the United States District Court for the Northern
District of Texas.

Before DAVIS, SMITH and DUHÉ, Circuit Judges.

     JERRY E. SMITH, Circuit Judge:

     Ruben Rocha appeals the denial of his 28 U.S.C. § 2255 motion

for habeas corpus relief.    We affirm.

                                  I.

     In the fall of 1988, a drug dealer named Thomas Padilla agreed

to sell cocaine on consignment:        He was to give Tony Rodriguez

thirty kilos of the drug, and Rodriguez was to sell it, paying

Padilla later from the proceeds. The plan went awry when Rodriguez
proved unable to sell the cocaine at a price sufficient to cover

his obligation.   Fearing Padilla, Rodriguez disappeared.

     Desperate to enforce his illegal contract, Padilla conspired

with Johnny Hinojosa to kidnap Rodriguez's nephew, Michael Baker.

The two abducted Baker and drove him from River Rouge, Michigan, to

Dallas, Texas, stopping briefly along the way to telephone Baker's

mother and inform her that Baker would be killed if Rodriguez

failed to pay his debt.
     Upon arriving in Dallas, they enlisted the help of Rocha, who

variously guarded Baker, negotiated with Rodriguez, and otherwise

assisted Padilla in arranging the payoff.         The FBI eventually

arrested Rocha and an accomplice as they drove away from a phone

where they had been attempting to contact Rodriguez.      A search of

the vehicle in which the two were captured revealed a loaded

revolver under Rocha's seat.

                                 II.

     Rocha was convicted of aiding and abetting kidnapping in

violation of 18 U.S.C. §§ 1201(a)(1)-(2), conspiracy to commit

extortion in violation of 18 U.S.C. § 1951, aiding and abetting

extortion in violation of 18 U.S.C. §§ 1951-1952, and using or

carrying a firearm during the commission of a crime of violence in

violation of 18 U.S.C. § 924(c).       We affirmed his conviction and

sentence on direct appeal.     See United States v. Rocha, 916 F.2d

219 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114

L.Ed.2d 462 (1991).

     In 1995, Rocha filed a pro se motion for habeas relief under

§ 2255, alleging that (1) his counsel was ineffective;       (2) the

evidence was insufficient to support his conviction on the "use or

carry" firearms offense;     (3) the evidence was insufficient to

support his convictions for conspiracy to extort and kidnapping;

and (4) the district court committed numerous errors in sentencing.

On November 30, 1995, the district court adopted the magistrate

judge's recommendation that the petition be denied on the merits.

On December 6, 1995, the Supreme Court decided Bailey v. United

States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995),
reinterpreting the "use" prong of 18 U.S.C. § 924(c);   on December

18, 1995, Rocha entered his notice of appeal;      and on April 24,

1996, the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into

effect.

                                III.

     As no published decision of this court has addressed the

issue, we must first decide whether 28 U.S.C. § 2253, as recently

amended by the AEDPA, requires that Rocha receive a certificate of

appealability ("COA") before we may hear his appeal.1   The statute

now provides:

     Unless a circuit justice or judge issues a certificate of
     appealability, an appeal may not be taken to the court of
     appeals from—

          (A) the final order in a habeas corpus proceeding in
          which the detention complained of arises out of process
          issued by a State court; or

          (B) the final order in a proceeding under section 2255.

28 U.S.C. § 2253(c)(1).    Prior to the enactment of the AEDPA, no

COA was required;   a timely notice of appeal was sufficient to vest

jurisdiction in this court.   As Rocha's appeal was pending on the

AEDPA's effective date, and he has never received a COA, the

retroactivity of § 2253(c)(1)(B) is squarely before us.2

     1
      In United States v. Orozco, 103 F.3d 389, 392 (5th
Cir.1996), we concluded that the COA requirement does apply to §
2255 appeals in which both the final judgment and the notice of
appeal were entered after the act's effective date. Id. at 392.
Rocha's situation is different, however: The final judgment and
notice of appeal were entered before the effective date, and the
issue is thus the applicability of the AEDPA to a pending appeal
rather than to a pending district court proceeding.
     2
      We decline to pretermit this question by granting a COA,
for to do so would fly in the face of what the AEDPA is intended
     Our retroactivity analysis follows the test of Landgraf v. USI

Film Prod., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).

There, the Court reaffirmed the longstanding presumption against

statutory retroactivity but noted that "procedural" rules—the COA

requirement being a good example—in some circumstances may be

applied retroactively to pending cases.     Id. at 275, 114 S.Ct. at

1502.

        The threshold inquiry under Landgraf is whether Congress "has

expressly prescribed the statute's proper reach," for if it has,

that legislative command must be obeyed.    Id. at 280, 114 S.Ct. at

1505.    If Congress has not spoken to retroactivity, however, we

must consider whether the new statute "would impair rights a party

possessed when he acted, increase a party's liability for past

conduct, or impose new duties with respect to transactions already

completed."    Id. When the new rule implicates these concerns, the

traditional presumption of non-retroactivity applies.     Id.

     Landgraf, then, requires us (1) to ask whether Congress has

spoken expressly to the retroactivity of the COA requirement, and

if it has not, (2) to analyze the requirement's effects on the



to accomplish. The COA requirement makes us a gatekeeper and is
designed to prevent judicial resources from being squandered by
searching for the "merits" of meritless appeals. Certainly, we
recognize that the showing for obtaining a COA is lower than that
required to prevail on the merits, as a COA may be granted
whenever reasonable jurists could differ as to whether there has
been "denial of a constitutional right." See 28 U.S.C. §
2253(c)(2); see also Drinkard v. Johnson, 97 F.3d 751, 756 (5th
Cir.1996), cert. denied, 1997 WL 10415 (U.S. Mar.3, 1997). In
any event, reasonable jurists could not differ as to Rocha's
appeal, for none of his claims even approaches the § 2253
standard. See Hohn v. United States, 99 F.3d 892, 893 (8th
Cir.1996) (declining to issue a COA because Bailey affected
statutory, not constitutional, rights).
parties as described above.     As nothing in the text of the AEDPA

expressly speaks to its retroactivity in non-capital cases, we may

proceed immediately to the second prong of the test.   Fortunately,

much of our work in this regard has already been accomplished by

previous decisions of this court.

     In Drinkard, we held that an application for a certificate of

probable cause ("CPC") in a § 2254 appeal could be treated as an

application for a COA without violating Landgraf 's dictates, as

the difference between a CPC and a COA is one of mere nomenclature.

Id. at 756.   That is, " "[b]ecause the standard governing the

issuance of a [COA] requires the same showing as that for obtaining

a [CPC], application of § 102 of the [AEDPA] to Petitioner's

request for a [CPC] would not constitute retroactive application of

a statute under Landgraf.... ' "    Id. (quoting Lennox v. Evans, 87

F.3d 431, 434 (10th Cir.1996), cert. denied, --- U.S. ----, 117

S.Ct. 746, 136 L.Ed.2d 684 (1997)).

     Citing Drinkard, we extended this analysis from applications

for certificates to the certificates themselves in Brown v. Cain,

104 F.3d 744, 748-49 (5th Cir.1997). Because Brown's CPC had given

him a " "settled expectation' [ ] that he had successfully passed

all procedural hurdles" to consideration of his claims, however, we

held that "[a]pplying the AEDPA's COA requirement to Brown in a

technical fashion would clearly raise retroactivity concerns." Id.

at 749.   Thus, we concluded, the COA requirement does not apply

retroactively to § 2254 appellants who obtained CPC's before the

AEDPA's effective date.   Id.

      Straightforward application of our reasoning in Drinkard and
Brown leads us similarly to conclude that the COA requirement does

not apply retroactively to § 2255 appeals that were pending on the

AEDPA's effective date.        Before the AEDPA took effect, appeals in

§ 2255 cases were as of right, and neither a COA nor a CPC was

required.      Application of the COA requirement to Rocha thus would

work an even greater retroactive effect than that which we rejected

in   Brown,     where    the   AEDPA   merely   would   have   required   the

petitioner-appellant to obtain a COA under the same standard as he

previously had obtained a CPC. That is, because Landgraf mandates

that the COA requirement not be retroactive in § 2254 cases, it

follows that it must also not be retroactive in § 2255 cases, where

retroactivity would have a more dramatic effect.

      Rocha did everything necessary to invoke the jurisdiction of

this court at the time he filed his notice of appeal.            Nothing in

the AEDPA suggests that Congress meant us to dismiss appeals that

were properly filed and pending as of the act's effective date, or

otherwise to restrict an appellant's right of review after it has

been properly invoked.

          We therefore conclude that the AEDPA's COA requirement does

not retroactively apply to § 2255 appeals in which the final

judgment and notice of appeal were entered before the AEDPA's

effective date.         This conclusion brings us into accord with the

other federal circuits that have considered the issue.3

      3
      See Thye v. United States, 96 F.3d 635, 637 (2d Cir.1996)
(holding that the COA requirement does not apply retroactively to
§ 2255 cases in which the notice of appeal was filed before the
AEDPA's effective date); Herrera v. United States, 96 F.3d 1010,
1011 (7th Cir.1996) (same); United States v. Lopez, 100 F.3d
113, 117 (10th Cir.1996) (same); Hunter v. United States, 101
F.3d 1565, 1573 (11th Cir.1996) (en banc) (same).
                                       IV.

         We now proceed to the merits.        For the first time on appeal,

Rocha raises a claim that the evidence presented at trial was

insufficient to support his 18 U.S.C. § 924(c) "use or carry"

conviction in light of the reinterpretation of "use" in Bailey.

His failure to raise this highly fact-dependent claim in the

district court prevents us from considering it for the first time

on appeal.4      Rocha, of course, could hardly be expected to have

raised a Bailey claim before Bailey was decided, but his proper

course of action is to file a successive § 2255 motion, not to

raise the issue for the first time here.5

         Rocha   also   contends   that      the    district   court   erred     in

rejecting his claim of ineffective assistance of counsel.                      The

district court, adopting the recommendation of the magistrate

judge, found that Rocha's only serious argument for ineffective

assistance was that his counsel had failed to obtain a separate

trial.     Noting that the court that heard Rocha's direct appeal

correctly    rejected    his   claim   that    he    should    have   received    a

severance, the district court held that his counsel's failure to

obtain something to which he was not entitled could not constitute

ineffective assistance.        See Rocha, 916 F.2d at 227-32.

     4
      See, e.g., United States v. Madkins, 14 F.3d 277, 279 (5th
Cir.1994); United States v. Cates, 952 F.2d 149, 152 (5th Cir.),
cert. denied, 504 U.S. 962, 112 S.Ct. 2319, 119 L.Ed.2d 238
(1992).
     5
      We express no view on the merits of such a successive
motion. We also note that our conclusion obviates the need to
consider either whether Bailey applies retroactively to
proceedings for collateral relief or the government's contention
that the evidence presented at trial was sufficient to sustain
Rocha's conviction under the "carry" prong of § 924(c).
     As Rocha has failed to adduce any additional arguments his

counsel could have raised in support of the severance motion, he

falls far short of meeting the deficiency-plus-prejudice standard

of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984).      The ineffective assistance claim was

properly denied.

        Rocha further argues that his conviction for conspiracy to

commit extortion is invalid because it was based on the same overt

act as a count of conspiracy to commit kidnapping, of which he was

acquitted.    Because he did not raise this claim in his direct

appeal, however, we may not consider it unless he demonstrates

"cause and prejudice" for his procedural default.              See United

States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594-95, 71

L.Ed.2d 816    (1982).     The   district   court,   again   adopting   the

recommendation of the magistrate judge, correctly held that Rocha

had failed to demonstrate either element of this test.              As to

cause, he has alleged nothing that would justify his failure to

raise the issue on direct appeal.            As to prejudice, it was

perfectly consistent for the jury to find that Rocha conspired to

commit extortion but not to commit kidnapping.

     Rocha next offers a series of arguments that the district

court   misapplied   the   sentencing   guidelines   by   increasing    his

offense level for making a ransom demand, increasing his offense

level for vulnerability of the victim, failing to grant a downward

departure based on his family circumstances, and failing to grant

a downward departure for his minor role in the offense.           Each of

these claims was raised and rejected in Rocha's direct appeal.
Rocha,    916   F.2d   at    242-45.   They   are   therefore   barred   from

collateral review.          E.g., United States v. Kalish, 780 F.2d 506,

508 (5th Cir.), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90

L.Ed.2d 660 (1986).

         Finally, at various points Rocha's brief suggests that the

district court (1) erred in failing to grant him a severance;             (2)

erred in interpreting 18 U.S.C. § 924(c);              and (3) improperly

commented on the weight of the evidence.            As with his sentencing

claims, each of these arguments was addressed and rejected by the

court that considered his direct appeal. Rocha, 916 F.2d at 227-29

(severance);     id. at 236-38 (interpretation of § 924(c));         id. at

232-33 (comments by the trial court).         Like the sentencing claims,

then, they are procedurally barred from collateral review. Kalish,

780 F.2d at 508.

     The denial of § 2255 relief is AFFIRMED.
