United States v. Hardy

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60926
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS J. HARDY,
also known as Curtis Jerome Hardy,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CR-68-ALL-WN
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Curtis J. Hardy appeals his conviction and sentence for
armed bank robbery, in violation of 18 U.S.C. § 2113, and for
brandishing a firearm during a crime of violence, in violation
of 18 U.S.C. § 924(c)(1). He contends that his conviction and
sentence should be reversed because trial counsel was ineffective
in failing to argue that he was right-handed, whereas the
evidence indicated that the robber was left-handed, which failure
he asserts deprived him of his only defense. Because the
United States Court of Appeals
Fifth Circuit
F I L E D
June 22, 2004
Charles R. Fulbruge III
Clerk

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No. 03-60926
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instant case is not one of the rare cases in which the record is
sufficiently developed to allow this court to evaluate the merits
of the claim, we decline to address it. See United States v.
Maria-Martinez, 143 F.3d 914, 916 (5th Cir. 1998); United States
v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). Hardy may bring
his ineffective-assistance-of-counsel claim in a collateral
proceeding under 28 U.S.C. § 2255. See Massaro v. United States,
538 U.S. 500, 504 (2003).
Hardy next contends that the district court erred in denying
his motion to suppress the evidence found in his girlfriend’s
apartment at the time of his arrest. His appellate brief on the
issue is directed solely to the district court’s conclusion that
his girlfriend, Cherries Young Odie, voluntarily consented to the
search, urging that the search was invalid because it resulted
from an illegal de facto arrest and because Odie was not advised
that she could decline to give her consent.
Even if it were assumed that the district court erred in
concluding that Odie voluntarily consented to the search, Hardy
has abandoned, by failing to raise in his appellate brief, any
argument challenging the district court’s alternative ruling that
exigent circumstances justified the search. See United States v.
Reyes, 300 F.3d 555, 558 n.2 (5th Cir. 2002); Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993); see also United States v.
Prince, 868 F.2d 1379, 1386 (5th Cir. 1989) (a new argument may
not be raised for the first time in a reply brief).

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No. 03-60926
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The district court’s judgment is AFFIRMED.

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