                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 91-4097
                         _____________________

                       UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                 VERSUS

                            ROY LEE PIERCE,

                                                     Defendant-Appellant.

      ____________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
      _____________________________________________________

                            (April 21, 1992)

Before GOLDBERG, DUHÉ, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

     The pivotal issues in this appeal from denial of § 2255 relief

are the scope of such proceedings, and Roy Lee Pierce's ineffective

assistance   of   counsel   claim   concerning   a    search   purportedly

violative of the Fourth Amendment, but which Pierce lacks standing

to challenge.     We AFFIRM.

                                    I.

     At the Los Angeles American Airlines terminal in December

1987, Pierce's sister-in-law, Angela Evans, picked up a package

sent from Tyler, Texas.        Shortly thereafter, she presented a

package to American Airlines employee McAdam for shipment to Tyler.

In response to his inquiry, Evans stated that it contained an
iron.1   She filled out an invoice, listing Amy Long as the shipper

and Hazel Crumpton as the recipient.             Evans informed McAdam that

she was shipping the package for a friend; but Evans, not Amy Long,

was the sender.

     After   Evans    left,   McAdam   became     suspicious,   because   the

package was too light to contain an iron; his resulting x-ray

revealed an opaque mass instead.        McAdam contacted his supervisor;

and, pursuant to airline policy, they opened the package and

discovered   what     later   proved   to   be   rock   cocaine.2     McAdam's

supervisor then contacted the DEA office at the airport, which

arranged a controlled delivery, forwarding the package to its

intended destination and establishing surveillance there. The next

day, at the Tyler airport, Crumpton was arrested after she picked

up the package.        Pierce had been observed driving her to the

airport and was waiting in the car.                He was arrested as he

attempted to escape.

     In January 1988, Pierce, Crumpton, Angela Evans, and her

husband, James Evans, were indicted for conspiracy to distribute

cocaine, in violation of 21 U.S.C. § 846; Pierce and Crumpton, also

for possession of cocaine, in violation of 21 U.S.C. § 841(a)(1).

Pierce   moved   to   suppress   the    cocaine    found   in   the   package,


1
     The facts underlying this court's affirmance on direct appeal
are found in United States v. Pierce, 893 F.2d 669 (5th Cir. 1990).

2
     McAdam testified that an opaque mass could mean a flammable
liquid, presenting a danger to the aircraft; and that, in such an
instance, airline policy allowed his supervisor to open the
package.

                                   - 2 -
asserting     that    the   search    violated      the   Fourth   Amendment.       A

supplement contended that he had "derivative standing to object to

the search" because the results would be used against him.                       The

district court, without addressing standing, denied the motion.

     Crumpton and the Evanses pleaded guilty during trial in July

1988; Angela Evans and Crumpton testified.                 The jury found Pierce

guilty   on    both     counts;      his     sentence     included      262   months'

imprisonment.        He appealed, including contending that the Los

Angeles search violated the Fourth Amendment.                      The government

countered that Pierce lacked standing to contest it.                      In United

States   v.   Pierce,       893   F.2d     669   (5th   Cir.   1990),    this   court

affirmed, holding, inter alia, that the Fourth Amendment had not

been violated and, accordingly, declining to address standing. Id.

at 674 n.2.

     In May 1990, Pierce moved under 28 U.S.C. § 2255 to vacate,

set aside or correct his sentence, asserting 24 grounds for relief,

the majority of which were ineffective assistance of counsel

claims. The government's response included the standing challenge.

Without addressing standing, the magistrate judge, in a most

thorough and well-reasoned report, recommended denial; and the




                                         - 3 -
district     court   adopted   the    recommendation.3     Pierce   timely

appealed.4

                                      II.

     Pierce limits the issues to the following:          he was denied, on

several grounds, his Sixth Amendment right to effective assistance

of counsel; the government knowingly used perjured testimony and

misled the jury about benefits his co-conspirators would receive

for cooperating with the government; and the government's attorney

committed perjury in denying production of alleged Jencks Act

material to Pierce.5

3
     The report, filed on October 18, stated that any written
objections were to be filed within 10 days after its receipt. It
was received at Pierce's prison on October 25, but not provided to
him until November 15. His written objections, allegedly mailed on
November 27, were filed on December 3. Three days before they were
filed, the district court adopted the report and entered judgment.
In mid-December, Pierce moved the district court to consider the
objections (maintaining that they were timely) and attached the
previously filed "unsworn declaration of statement" of Angela
Evans. Although the district court stated that the objections were
not timely, it ruled that the objections were without merit.

     Pierce contends that his objections were timely, and that the
district court erred in failing to consider them, including Evans'
written statement. If objections are untimely, an aggrieved party
is not entitled to de novo review of the magistrate judge's
findings and recommendations, and appellate review of findings
accepted or adopted by the district court is only for plain error
or manifest injustice. E.g., Rodriguez v. Bowen, 857 F.2d 275,
276-77 (5th Cir. 1988). The record reflects, however, that the
district court considered the objections; we treat them as timely.
4
     After Pierce, pro se, filed affirmative and reply briefs,
counsel was appointed, filed a supplemental brief, and participated
in oral argument.
5
     Pierce has narrowed the 24 issues in the § 2255 application to
14 here. Of course, issues presented in the application, but not
pursued on appeal, have been abandoned. E.g., Barrientos v. United
States, 668 F.2d 838, 840 n.1 (5th Cir. 1982).


                                     - 4 -
     For a collateral attack under § 2255, "a distinction is drawn

between constitutional or jurisdictional errors on the one hand,

and mere errors of law on the other."   United States v. Capua, 656

F.2d 1033, 1037 (5th Cir. Unit A 1981).      See United States v.

Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992).6    This is because,

"[a]fter conviction and exhaustion or waiver of any right to

appeal, `we are entitled to presume that [the defendant] stands



     Along that line, Pierce stated in his pro se affirmative brief
that, "[o]n appeal, petitioner abandons the [government's]
suborning perjury from American Airlines employees allegation",
raised in the application. (Emphasis by Pierce.) In a pro se
motion subsequent to all briefs being filed, however, Pierce claims
that he did not intend to abandon the issue, maintaining that "[a]s
a pro se litigant [he was] not cogniz[ant of] the legal implication
of using the term abandons." (Emphasis by Pierce.) His appointed
counsel advised, without briefing, that he did not object to the
issue being considered. This issue has been abandoned. In any
event, "[t]he `contentions of the appellant with respect to the
issues presented, and the reasons therefor, with citations to the
authorities, statutes and parts of the record relied on' must be
included in the appellant's brief." United States v. Abroms, 947
F.2d 1241, 1250 (5th Cir. 1991) (quoting Fed. R. App. P. 28(a)(4)),
petition for cert. filed, (U.S. Feb. 20, 1992) (No. 91-1418).
Pierce has failed to comply; accordingly, "[i]t `would be patently
unfair to the [government] for this court to consider this issue as
properly before it.'" Id. (bracket in Abroms) (quoting Cannon v.
Teamsters & Chauffeurs Union, 657 F.2d 173, 178 (7th Cir. 1981)).
6
     Section 2255 provides in part:

               A prisoner in custody under sentence of a
          court established by Act of Congress claiming the
          right to be released upon the ground that the
          sentence   was   imposed  in   violation   of   the
          Constitution or laws of the United States, or that
          the court was without jurisdiction to impose such
          sentence, or that the sentence was in excess of the
          maximum authorized by law, or is otherwise subject
          to collateral attack, may move the court which
          imposed the sentence to vacate, set aside or
          correct the sentence.

28 U.S.C. § 2255.

                              - 5 -
fairly and finally convicted.'"            United States v. Shaid, 937 F.2d

228, 231-32 (5th Cir. 1991) (en banc) (quoting United States v.

Frady, 456 U.S. 152, 164 (1982)), cert. denied, __ U.S. __, 112 S.

Ct. 978 (1992).           Accordingly, "[a] defendant can challenge his

conviction        after   it   is     presumed   final      only   on    issues     of

constitutional or jurisdictional magnitude, and may not raise an

issue for the first time on collateral review without showing both

`cause'     for    his    procedural     default,     and    `actual     prejudice'

resulting from the error."            Id. at 232 (citations omitted).            "This

cause and actual prejudice standard presents `a significantly

higher hurdle' than the `plain error' standard that we apply on

direct appeal."       Id. (quoting Frady, 456 U.S. at 166).             Other types

of error may not be raised in a collateral attack, unless the

defendant demonstrates that "the error could not have been raised

on direct appeal, and if condoned, would result in a complete

miscarriage of justice."            Id. at 232 n.7.    See also Capua, 656 F.2d

at 1037.7

                                          A.

     Pierce's        ineffective       assistance     of    counsel     claims    are

obviously of constitutional magnitude and satisfy the cause and

actual prejudice standard.            "Ineffective assistance of counsel ...

is cause for a procedural default."              Murray v. Carrier, 477 U.S.


7
     For an excellent discussion of this subject, including the
government being required to raise the procedural bar in district
court in order to invoke it on appeal, see United States v. Drobny,
955 F.2d 990, 995 (5th Cir. 1992).         Concerning Pierce, the
government raised the bar in the § 2255 district court proceeding
and here.

                                        - 6 -
478, 488 (1986).         "[I]f [a] procedural default is the result of

ineffective assistance of counsel, the Sixth Amendment ... requires

that responsibility for the default be imputed to the [government],

which    may    not    `conduc[t]       trials    at   which   persons   who   face

incarceration         must    defend     themselves    without   adequate      legal

assistance.'"         Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 344

(1980)).   Moreover, "`[t]he general rule in this circuit is 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. Munoz-Romo,

947 F.2d 170, 179 (5th Cir. 1991) (quoting United States v. Higdon,

832 F.2d 312, 313-14 (5th Cir. 1987), cert. denied, 484 U.S. 1075

(1988)).       Except in those rare instances where an adequate record

exists to evaluate such a claim on direct appeal, this court

generally declines to address it, without prejudice to it being

raised under § 2255.              E.g., id.

     Pierce maintains that his counsel was ineffective because

first, he failed to present, on direct appeal, a "controlling"

Fifth Circuit case concerning whether the airline employees were

acting   as     agents       or    instruments    of   the   government,   thereby

violating the Fourth Amendment by searching the package, and,

instead, relied on a Ninth Circuit standard; second, he failed to

investigate before trial, or present on appeal, whether the airline

search was required by federal regulations, thereby constituting

federal action for purposes of determining whether the search was


                                          - 7 -
conducted by a private party or by an agent or instrument of the

government; third, he failed to object, move for a mistrial, or

request limiting instructions when Pierce's co-conspirators' plea

agreements were introduced at trial; and fourth, he refused both to

cross-examine Angela Evans on whether the package (with money) she

received from Pierce -- before she sent the package (with cocaine)

addressed to Crumpton -- had been opened prior to receipt and to

question Pierce at the suppression hearing on this subject.         "To

succeed on any claim of ineffective assistance of counsel, a

defendant must show that:    (1) the attorney's representation fell

below an objective standard of reasonableness, and (2) there is a

reasonable     probability   that        except   for   the   attorney's

unprofessional errors, the results of the proceeding would have

been different."    United States v. Kinsey, 917 F.2d 181, 183 (5th

Cir. 1990) (citing Strickland v. Washington, 466 U.S. 668, 687-88,

694 (1984)).     An insufficient showing of prejudice pretermits

addressing the adequacy prong.      E.g., United States v. Fuller, 769

F.2d 1095, 1097 (5th Cir. 1985).

                                    1.

     The first two ineffective assistance contentions relate to

Pierce's claim that the search in Los Angeles was by instruments or

agents of the government and violated his Fourth Amendment rights.8

The government maintains that he lacks standing to challenge this


8
     This claim possibly brings Skinner v. Railway Labor
Executives' Ass'n, 489 U.S. 602 (1989), into play and was the
primary reason for our hearing oral argument. Our resolution of
the standing issue, however, moots the claim.

                                 - 8 -
search.     Pierce responds, as he did in the § 2255 district court

proceeding, that the government has waived its right to contest

standing, because it did not do so in the trial court.9                     Steagald

v.   United   States,       451   U.S.     204,    209   (1981),   holds    that    the

government "may lose its right" to raise Fourth Amendment standing

on appeal "when it has made contrary assertions in the courts

below, when it has acquiesced in contrary findings by those courts,

or when it has failed to raise such questions in a timely fashion

during the litigation."

      Steagald involved the government's first-time assertion, after

grant of certiorari, that a defendant lacked standing to object to

the search of another's house.                    The Court noted that, in the

district court        and   this     court,   the     government    had    failed    to

challenge     facts     from      which     the    defendant's     standing    could

reasonably have been inferred.              In fact, it "ha[d] directly sought

to connect [the defendant] with the house, ha[d] acquiesced in

statements by the [trial and appeals] courts ... characterizing the

search as one of [the defendant's] residence, and ha[d] made

similar concessions of its own."              451 U.S. at 210.      On appeal, the

government     "never       sought    to     correct"     the    district     court's

characterizations of the defendant's Fourth Amendment claim, and,

in fact, "in its opposition to certiorari expressly represented

that the searched home was [the defendant's] residence."                      Id. at


9
     Pierce also contends that, on direct appeal, this court found
standing, by implication, when it addressed his Fourth Amendment
claim.   As noted, this court stated, instead, that it was not
necessary to reach standing. 893 F.2d at 674 n.2.

                                          - 9 -
209-10.    Through its "assertions, concessions, and acquiescence",

the government lost its right to challenge standing.              Id. at 211.

Cf. United States v. Amuny, 767 F.2d 1113, 1121-22, 1121 n.5 (5th

Cir. 1985) (government forfeited opportunity to challenge standing

on appeal where it not only failed to raise the issue in district

court,    but   expressly     conceded   standing,   thereby   inducing   the

defendants to forego an opportunity to establish it).10

     In this case, there is no conduct by the government, similar

to that in Steagald or Amuny, such as taking earlier contrary

positions or engaging in deliberate strategy shifts.              Nor is this

the first time that standing has been raised.              As noted, and as

discussed below, Pierce asserted prior to the suppression hearing

that he had standing, but never offered facts from which it might

reasonably      have   been   inferred.      Thereafter,    the     government

consistently contested standing -- on direct appeal, in the § 2255

proceeding in district court, and on this appeal.          It is not barred

from doing so.

     A defendant bears the burden of establishing standing to

challenge a search under the Fourth Amendment -- that he has "a

privacy or property interest in the premises searched or the items

seized which is sufficient to justify a `reasonable expectation of

privacy' therein."      United States v. Judd, 889 F.2d 1410, 1413 (5th

Cir. 1989) (citation omitted), cert. denied, 494 U.S. 1036 (1990).

Standing     "is   a    personal    right    which   cannot    be    asserted

10
     For an example of standing being allowed to be raised on
appeal for the first time, see United States v. Cardona, 955 F.2d
976, 981-82 (5th Cir. 1992).

                                    - 10 -
vicariously."   San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 704

(5th Cir. 1991).

     It is uncontested that the package (with cocaine) was neither

sent by, nor addressed to, Pierce.       Arguably, a defendant who is

neither the sender nor the addressee of a package has no privacy

interest in it, and, accordingly, no standing to assert Fourth

Amendment objections to its search.       See United States v. Koenig,

856 F.2d 843, 846 (7th Cir. 1988).       And, it may well be that even

if Pierce claimed that he was the intended recipient of the

package, this would not confer a legitimate expectation of privacy,

because it was addressed to, and received by, another -- Hazel

Crumpton.   See United States v. Givens, 733 F.2d 339, 341-42 (4th

Cir. 1984).11 See also United States v. Osunegbu, 822 F.2d 472, 480

n.23 (5th Cir. 1987) (defendants had no standing to challenge

examination   by   postal   inspectors   of   unopened   mail   that   was

addressed to, and intended for, someone other than defendants).

     Here, before and during trial, Pierce continually attempted to

disassociate himself from the package.        At a preliminary hearing,

a Tyler police officer testified that Pierce denied ownership of

the package and contended that it, and its contents, belonged to

Crumpton. Further, Pierce argued, at the same hearing, that he had


11
     See also United States v. Richards, 638 F.2d 765 (5th Cir.),
cert. denied, 454 U.S. 1097 (1981), which involved a package
addressed to a company owned by the defendant; the company, "in
effect, was [the defendant]." Id. at 770. Here, the package was
not addressed to a fictitious entity, or to an alter ego of Pierce,
but to Crumpton. Although Crumpton may have had standing to raise
Fourth Amendment objections, this personal right could not be
asserted vicariously by Pierce.

                                - 11 -
never been in possession of the package, and, at that hearing and

at trial, that his name was not "anywhere on that package".                       At no

point, including during this appeal, has Pierce ever attempted to

establish, much less prove, any privacy interest in the package.

See, e.g., Koenig, 856 F.2d at 846.                 Indeed, his "only [admitted]

interest in suppressing the package and its contents is to avoid

its evidentiary force against him", an interest not protected under

the Fourth Amendment.          Id.

      Lacking standing to object to the search, Pierce cannot show

prejudice    resulting    from       his    counsel's         performance    concerning

issues related    to     it.         Therefore,         the   first   two   ineffective

assistance claims must fail.               See Fuller, 769 F.2d at 1097.

                                            2.

      Pierce contends that his counsel was ineffective for failing

to object, move for a mistrial, or request limiting instructions

when evidence of his co-conspirators' guilty pleas was introduced

through   the   testimony,       including         on    redirect     examination,    of

Crumpton and Angela Evans and referred to during closing argument

by the government.       However, "[a] witness-accomplice guilty plea

may be admitted into evidence if it serves a legitimate purpose and

a   proper   limiting    instruction          is    given."        United    States   v.

Marroquin, 885 F.2d 1240, 1247 (5th Cir. 1989), cert. denied, 494

U.S. 1079 (1990).

      The record reflects that the government introduced Crumpton's

and Angela Evans' plea agreements, not as evidence of Pierce's

guilt, but to show that neither had received a "sweetheart deal" in


                                        - 12 -
exchange for her testimony. In fact, defense counsel attacked both

on    cross-examination    in   an    attempt     to   demonstrate     that   they

"hope[d] to gain some favor of some kind, some kind of benefit out

of saying this stuff in here today".          Attempting to show that there

is no "sweetheart deal" between the government and an accomplice

witness is a legitimate reason for introducing a plea agreement.

Id.      Indeed,   "[c]ounsel        presenting      witnesses    of   blemished

reputation routinely bring out `such adverse facts as they know

will be developed on cross-examination' in order to avoid even the

appearance of an `intent to conceal.'" United States v. Borchardt,

698 F.2d 697, 701 (5th Cir. 1983) (quoting United States v.

Aronson, 319 F.2d 48, 51 (2d Cir.), cert. denied, 375 U.S. 920

(1963)).

       Moreover,   the   district     court   gave     limiting   instructions,

including that "[t]he fact that a witness has entered a plea of

guilty to the offense charged in this indictment is not evidence in

and of itself of the guilt of any other defendant."               Given that the

plea agreement was introduced for a legitimate purpose, and that

adequate limiting instructions were given, there was no error, and

therefore, no ineffective assistance.12

                                       3.

       As noted, just before shipping the package (with cocaine) to

Crumpton, Angela Evans picked up at the airport a package shipped

from Tyler, Texas.        She testified that it was from Pierce and


12
     Accordingly, Pierce's contention that these asserted failures
deprived him of a fair trial also fails.

                                     - 13 -
contained money in payment for cocaine.      Pierce claims that his

counsel was ineffective for refusing, at Pierce's request, to

cross-examine Evans on whether the money package was open when she

received it.   However, no contention had been made that this

package had been subjected to a search.   Indeed, Pierce's motions

to suppress related solely to the cocaine package.    To the extent

Pierce contends that this question is relevant to that search, we

have already determined that he lacks standing to assert Fourth

Amendment objections to it.   Because no prejudice is demonstrated

from a refusal to ask this question, this ineffective assistance

claim is also without merit.13

                                   B.

     Pierce's remaining contentions fail to clear the procedural

hurdle for a collateral challenge.

                                   1.

     Pierce maintains that he was denied due process because DEA

agents gave perjured testimony concerning the Los Angeles search,

in an effort to avoid it being governmental, rather than private,

action, subject to the Fourth Amendment.14   Although this issue is

13
     Citing Rock v. Arkansas, 483 U.S. 44 (1987), Pierce contends
that his counsel's refusal to allow him to testify at the
suppression hearing about Angela Evans' statement to him regarding
the alleged open money package denied him his constitutional right
to testify on his own behalf. Even assuming that the testimony
would have been admissible, Pierce, as noted, has failed to
demonstrate the relevance of this issue, or any resulting
prejudice. Accordingly, this contention has no merit.
14
     This contention stems from the district court finding, in
ruling on the motion to suppress, that DEA agents "lie[d]" at the
suppression hearing when they testified that Angela Evans was not
under their surveillance at that airport before the cocaine package

                                 - 14 -
advanced as one of constitutional magnitude, Pierce (who lacks

standing to challenge the search) fails to demonstrate either cause

for the procedural default (not raising the issue on direct appeal)

or actual prejudice.

                                2.

     The final contentions are that the prosecution misled the jury

regarding benefits that Pierce's co-conspirators would receive from

cooperating with the government; and that the government's attorney

committed perjury in denying production of material to Pierce under

the Jencks Act, 18 U.S.C. § 3500(b).   Pierce has not raised these

issues in the context of a constitutional violation, nor do we

construe them as such.   He fails to demonstrate either why they

could not have been raised on direct appeal15 or why, assuming

error, condoning it would result in a complete miscarriage of

justice.16

                               III.

     For the foregoing reasons, the denial of § 2255 relief is

             AFFIRMED.



was opened.     However, it also found that the deception was
unrelated to the search; that the surveillance "was reasonable
under the circumstances"; and that the agents were not involved in
the initial opening of the cocaine package. On direct appeal, this
court held that the latter finding was not clearly erroneous. 893
F.2d at 673.
15
     On direct appeal, Pierce raised a Jencks Act contention about
the same incident; but, it did not include a perjury element. 893
F.2d at 675.
16
     Because Pierce has not presented issues entitling him to §
2255 relief, his contention that the district court erred by not
holding an evidentiary hearing on his § 2255 claims is moot.

                              - 15 -
