                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 3, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-60098
                         Summary Calendar


ARTHUR L. GARY,

                                     Petitioner-Appellant,

versus

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS,

                                     Respondent-Appellee.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                      USDC No. 3:03-CV-192
                      --------------------

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Arthur L. Gary, Mississippi prisoner # 44082, appeals from

the district court’s denial of his 28 U.S.C. § 2254 petition

challenging his convictions for the unlawful sale and possession

with intent to distribute cocaine.   The district court granted

Gary a certificate of appealability (COA) on two issues:

(1) whether counsel was ineffective in failing to preserve for

appeal the admissibility at trial of a handgun, and (2) whether

Gary’s Fourth Amendment rights were violated by the search and


     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-60098
                                  -2-

seizure of evidence from his home and his car and whether counsel

was ineffective for not challenging the     allegedly illegal search

at trial or on appeal.**

     It is undisputed that the Mississippi Supreme Court

erroneously rejected Gary’s ineffective assistance of counsel

claims on procedural grounds because the court believed that Gary

had raised the claims on direct appeal when, in fact, he had not.

We therefore review Gary’s claims de novo rather than under the

deferential standards provided in the Antiterrorism and Effective

Death Penalty Act (AEDPA).    See Miller v. Johnson, 200 F.3d 274,

281 n.4 (5th Cir. 2000).

     Given the overwhelming evidence that Gary sold cocaine to

Lewis Pearley, a confidential informant (CI), Gary cannot show

that but for the introduction of the handgun at trial, he would

not have been convicted.   Thus, he has not shown any prejudice

from counsel’s failure to make a record of his objection to the

handgun on the basis of an alleged discovery violation.     See

Strickland v. Washington, 466 U.S. 668, 694 (1984).     The district

court did not err in denying relief on this claim.     See id.    The

same is true of Gary’s claim that counsel was ineffective for not

moving to suppress the handgun on the ground that the search of



     **
        Although Stone v. Powell, 428 U.S. 465, 486 (1976),
precludes Gary from obtaining federal habeas relief on an
independent Fourth Amendment claim, Stone does not bar Gary’s
ineffective assistance of counsel claim premised on counsel’s
failure to litigate a Fourth Amendment claim. See Kimmelman v.
Morrison, 477 U.S. 365, 382-83 (1986).
                             No. 05-60098
                                  -3-

Gary’s car, where the handgun was found, violated his Fourth

Amendment rights.   Gary has not shown that he was prejudiced by

counsel’s failure to litigate a Fourth Amendment claim relating

to the search of his car.    See id. at 691-92.

     Regarding counsel’s alleged ineffectiveness in not

challenging the search and seizure of evidence from Gary’s home,

the evidence at trial supports the district court’s denial of

this claim, albeit for reasons that differ from those provided by

the district court.   Assuming arguendo that the warrantless entry

into Gary’s home violated his Fourth Amendment rights, it is

undisputed that no evidence was obtained during that entry.

Instead, officers waited for a search warrant before seizing any

evidence from Gary’s home.    Gary makes no claim that the

affidavit submitted in support of the search warrant was tainted

by the warrantless entry or that anything seen during the

warrantless entry affected the officers’ decision to obtain a

warrant.    See United States v. Bryan, 275 F.3d 1081 (5th Cir.

2001).    The record does not support a finding that the evidence

obtained pursuant to the search warrant was excludable.      Id.; see

also Murray v. United States, 487 U.S. 533, 541-42 (1988).

Because Gary has failed to show that his Fourth Amendment claim

is meritorious, he has not shown that counsel was deficient for

failing to challenge the search and seizure of evidence from his

home.    See Kimmelman v. Morrison, 477 U.S. 365, 375, 382 (1986);
                            No. 05-60098
                                 -4-

Strickland, 466 U.S. at 694.    Therefore, the district court did

not err in denying relief on this claim.    Id.

     Gary did not raise in state court or in the district court

the issues of whether Pearley’s identification of him was made

pursuant to an overly suggestive identification procedure or

whether the search warrant for his home and car was deficient,

and the district court did not grant a COA on either of these

issues.    See Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir.

1998).    These arguments are therefore beyond the scope of the

COA, which Gary has not requested be broadened to include the new

issues.    See United States v. Kimler, 150 F.3d 429, 430 (5th Cir.

1998).

     AFFIRMED.
