                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT

                            _________________

                               No. 95-21033

                           (Summary Calendar)
                            _________________


           UNITED STATES OF AMERICA,


                                   Plaintiff-Appellee,

           versus


           LAMBERT LUCIOUS,


                                   Defendant-Appellant.



            Appeal from the United States District Court
                 For the Southern District of Texas
                          (CR H-92-141-01)


                        November 26, 1996
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

     Lambert Lucious appeals the district court’s denial of his

petition for writ of habeas corpus.        We affirm.

     A jury convicted Lucious of conspiracy to import and possess

more than one kilogram of heroin with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(i), 952, 960, and


     *
            Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
963. The judge sentenced him to serve two concurrent terms of 188

months   followed   by   concurrent   five-year    terms     of   supervised

release.   Lucious appealed his conviction to this court, claiming

that it was based on impermissible extrinsic act evidence and

hearsay.   We detailed the facts of the criminal case, and our

conclusions that Lucious’s claims were meritless, in an unpublished

per curiam opinion styled United States v. Lucious, No. 93-2205

(5th Cir. April 4, 1994).

     Lucious then filed this petition for writ of habeas corpus,

making four arguments that he did not raise on direct appeal.            The

district   court    granted   the   government’s    motion    for    summary

judgment, from which Lucious now appeals.         Lucious argues for the

first time on habeas appeal (1) that his conviction was obtained by

testimony the prosecution knew or should have known was false; (2)

that the district court erred in denying his motion for continuance

so his wife could testify; (3) that the prosecutor suppressed

material, favorable evidence in violation of Brady v. Maryland; and

(4) that his counsel was ineffective because he failed to conduct

an adequate investigation and failed to impeach a prosecution

witness.

     A defendant who has been convicted and has exhausted or waived

his right to appeal is presumed to have been “fairly and finally

convicted,”   United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.

1991) (en banc), cert. denied, 502 U.S. 1076, 112 S. Ct. 978, 117


                                    -2-
L. Ed. 2d 141 (1992), and a collateral challenge may not serve as

an appeal.     United States v. Frady, 456 U.S. 152, 168, 102 S. Ct.

1584, 1594-95, 71 L. Ed. 2d 816, reh’g denied, 456 U.S. 1001, 102

S. Ct. 2287, 73 L. Ed. 2d 1296 (1982); Shaid, 937 F.2d at 231.

Therefore,     a    defendant    who      raises   a   constitutional         or

jurisdictional issue for the first time on a petition for habeas

corpus must show both cause for the default and actual prejudice

resulting from the error.       Frady, 456 U.S. at 168; Shaid, 937 F.2d

at 232.   The only exception to the cause and prejudice standard is

the extraordinary case in which a constitutional violation results

in the conviction of one who is actually innocent.            Shaid, 937 F.2d

at 232.

     Lucious argues that the ineffectiveness of his counsel, who

was terminally ill with brain cancer, constitutes the “cause” for

his failure to raise these issues on direct appeal.                 We need not

decide    whether   his   counsel   met    the   guarantees    of    the   Sixth

Amendment or whether the asserted shortcomings of his counsel were

sufficient cause for failing to raise his claims on direct appeal,

however, because Lucious has failed to show that prejudice has been

established.

     Lucious first contends that his conviction was obtained by

testimony the prosecution knew or should have known was false.

Specifically, Lucious contests the identity of Edwin Williams, a

key prosecution witness, who Lucious claims is actually a drug


                                    -3-
smuggler named Boniface Okechukwu Nwisu.           At trial, Lucious’s

counsel cross-examined Williams about his identity, asking him

specifically whether or not he was Nwisu, and counsel introduced

evidence at trial to impeach Williams’s allegedly false testimony.

In addition, Lucious’s attorney used evidence about Williams’s

identity in closing remarks.   Lucious has failed to show why the

witness’s name is at all material to Lucious’s innocence or guilt

for drug   smuggling.    Therefore,   he   fails   to   show   sufficient

prejudice to justify a collateral challenge under Shaid.

     Lucious argues that the district court denied him due process,

the effective assistance of counsel, and his right to compulsory

process by denying Lucious’s motion to continue his trial so that

his wife could testify on his behalf at a later date.      According to

Lucious, his wife would testify that she did not see Lucious and

his alleged coconspirators ingesting drug-filled balloons in the

couple’s home in Lagos, Nigeria.      Lucious did not challenge the

denial of his motion for continuance on direct appeal, and he has

not shown how he was prejudiced by his wife’s failure to testify.

Taken at face value, Lucious’s version of what his wife would say

under oath is not inconsistent with the testimony at trial, since

the conspirators could easily have ingested the drugs outside of

her presence.     His claim that the lack of his wife’s testimony

rises to a constitutional violation is therefore insufficient to

show prejudice.



                                -4-
     Lucious also claims that the prosecution withheld exculpatory

evidence from him in violation of Brady v. Maryland, 373 U.S. 83,

83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).            As examples of such

evidence, Lucious cites Williams’s real name, fingerprints, and

immigration    records;   the   statement   that   coconspirator    Anthony

Omagbemi allegedly gave to police on arrest; and the alleged

statement   of    coconspirator   Charles   Igbokwe    on   arrest.    The

defense’s cross examination at trial reflects that Lucious was in

possession of some of the evidence allegedly suppressed.              Brady

does not require the disclosure of evidence that is available to

the defense.     United States v. Brown, 628 F.2d 471, 473 (5th Cir.),

reh’g denied, 633 F.2d 582 (5th Cir. 1980).         As to the rest of the

evidence, Lucious has completely failed to demonstrate that any

such evidence would have been favorable to his defense.            Thus the

evidence satisfies neither the favorableness requirement of Brady

nor the prejudice requirement of Shaid.

     Lucious raises an ineffective assistance of counsel claim,

asserting that his terminally ill lawyer failed to interview

Omagbemi, Williams, and Igbokwe; failed to investigate Lucious’s

records for an alibi; and failed to impeach Williams at trial.

Lucious does not assert how performance of any of these tasks by

counsel would be material to the outcome of the trial, and thus he

has failed to show prejudice under Shaid.

     The only exception to the “cause and prejudice” requirements


                                    -5-
of Shaid is where the petitioner can show that a constitutional

violation probably resulted in the conviction of an innocent

person.     United States v. Flores, 981 F.2d 231, 236 (5th Cir.

1993).    To show “actual innocence,” a petitioner must establish

that “there is a fair probability that, in light of all the

evidence, a reasonable trier could not find all the elements

necessary to convict the defendant of that particular crime.”

Johnson v. Hargett, 978 F.2d 855, 859 (5th Cir. 1992), cert.

denied, 507 U.S. 1007, 113 S. Ct. 1652, 123 L. Ed. 2d 272 (1993).

Lucious has shown neither a constitutional violation nor actual

innocence.        In   light    of    the   detailed     testimony     of    the

coconspirators concerning the drug smuggling operation, it is clear

that a reasonable trier could find each element necessary to

convict Lucious.

      Having failed to raise any of the above challenges on direct

appeal, Lucious had to show both cause and actual prejudice in his

trial.    Lucious has not shown how any of the four alleged errors

was prejudicial, and we therefore hold that the district court

correctly declined to overturn his conviction under § 2255.1


      1
            We note that Lucious’s appeal was pending when the President signed
into law the Antiterrorism and Effective Death Penalty Reform Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Congress did not specify
an effective date for § 102(c)(3), and this court has not decided whether amended
§ 2253 applies to pending § 2255 appeals. We decline to do so here. Because the
petitioner is not entitled to relief under the less restrictive standards of
§ 2253 before amendment, the question of whether we deny relief under the more
or less restrictive standard is moot. See Boyle v. Johnson, 93 F.3d 180, 188-89
(5th Cir. 1996) (declining to decide retroactivity of AEDPA to pending appeal
because prisoner made insufficient showing under less restrictive standards).

                                      -6-
Accordingly, we AFFIRM.




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