     Case: 17-30013      Document: 00514370793         Page: 1    Date Filed: 03/02/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 17-30013                              FILED
                                  Summary Calendar                        March 2, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL D. BRUMFIELD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:16-CV-11463


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Michael D. Brumfield, federal prisoner # 27500-034, appeals the district
court’s denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence on grounds of ineffective assistance of trial and appellate
counsel. Brumfield also asserts the district court abused its discretion in
failing to hold an evidentiary hearing regarding his motion and that the
district court erred by not granting him a new trial under Federal Rule of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-30013

Criminal Procedure 33.       The district court granted him a certificate of
appealability (COA) on the issue of ineffective assistance of trial counsel.
      As a preliminary matter, Brumfield has presented arguments in his brief
that were not included in the district court’s grant of a COA.           Normally,
appellate review in § 2255 proceedings is limited to issues on which the district
court granted a COA. See Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir.
1997). When, however, a party expressly seeks a COA on additional issues,
this court may certify those issues if the party meets the requirements for a
COA. See United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). Brumfield
has not moved for an extension of the COA as to his claim of ineffective
assistance of appellate counsel, and we decline to consider his brief as such a
motion. See Lackey, 116 F.3d at 151-52; 28 U.S.C. § 2253(c). We therefore lack
jurisdiction to consider that issue. In addition, Brumfield has abandoned, by
failing to brief, his claim that trial counsel was ineffective for failing to obtain
certain Drug Enforcement Administration (DEA) reports.             See Hughes v.
Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
      We now turn to the merits of Brumfield’s challenges. In considering a
§ 2255 motion, this court reviews the district court’s factual findings for clear
error and its conclusions of law de novo. United States v. Redd, 562 F.3d 309,
311 (5th Cir. 2009). In order to prevail on his claim of ineffective assistance of
trial counsel, Brumfield must show (1) that his counsel’s performance was
deficient in that it fell below an objective standard of reasonableness; and
(2) that the deficient performance prejudiced the defense.           Strickland v.
Washington, 466 U.S. 668, 689-94 (1984). Brumfield has not satisfied the
second prong of Strickland.       That is, he has not shown that there is a
reasonable probability that, but for trial counsels’ alleged error in failing to
investigate and interview certain witnesses, the result of the proceeding would



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                                 No. 17-30013

have been different. See id. at 694; see also Harrison v. Quarterman, 496 F.3d
419, 425 (5th Cir. 2007) (requiring showing of prejudice to demonstrate that
counsel was ineffective in failing to interview witness); United States v. Green,
882 F.2d 999, 1003 (5th Cir. 1989) (stating that a defendant must show how
an investigation would have altered the trial’s outcome). Accordingly, he is not
entitled to relief on this challenge. See Strickland, 466 U.S. at 687-88, 694.
      Brumfield also argues that the district court should have conducted an
evidentiary hearing on his claim of ineffective assistance of trial counsel.
Brumfield, however, did not produce “independent indicia of the likely merit of
his allegations,” and the district court was within its discretion in determining
that the record was sufficient to show conclusively that no relief was
appropriate. United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013).
      Last, Brumfield contends that newly discovered evidence of misconduct
by law enforcement officers warranted a new trial under Federal Rule of
Criminal Procedure 33. The evidence, according to Brumfield, consisted of
newspaper articles which generally addressed allegations of misconduct made
against a DEA agent and the agent’s suspension amid a state and federal
investigation. Because those articles do not have an evidentiary purpose other
than to impeach trial testimony, the district court did not abuse its discretion
in denying Brumfield’s motion for a new trial. See United States v. McRae, 795
F.3d 471, 478 (5th Cir. 2015); United States v. Villarreal, 324 F.3d 319, 326
(5th Cir. 2003).
      AFFIRMED.




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