United States v. Demik

United States Court of Appeals
Fifth Circuit
F I L E D
June 14, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-11215
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES DEMIK,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________
Before SMITH, BENAVIDES, and DENNIS,
Circuit Judges.
PER CURIAM:
The district court denied James Demik’s re-
quest for an evidentiary hearing on his claim of
ineffective assistance of counsel. Because the
court did not abuse its discretion, we affirm.
I.
Demik was found guilty by a jury. After
trial, he fired his trial counsel and filed pro se
motions, including a motion for a new trial and
a motion to adopt his co-defendants’ motions.
In the former, Demik alleged his trial counsel
was ineffective, stating the following:
Defendant DeMik’s counsel failed or re-
fused direct instructions with respect to
critical motions and final argument, failed
to make or register numerous motions,
objections and final argument issues de-
manded by remedial and historic rules of
effective representation and otherwise
failed to provide Defendant DeMik a nomi-

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nal defense and/or fair and impartial trial.
In the latter motion, Demik urged that
3. One of many procedural basis [sic] for
Defendant DeMik’s termination of trial
counsel was said counsel’s the [sic] failure
to make a pre-trial motion to severe [sic]
the government’s cause of action from oth-
er misjoined codefendants as expressly re-
quested by Defendant but only revealed af-
ter the verdict was received.
4. Without regard to the merit of instruc-
tions to trial counsel made by Defendant
DeMik nor to his actions or inactions dur-
ing trial, Defendant and/or any appointed
counsel would be at an extreme disadvan-
tage in pursuing legitimate post guilty
and/or appellate pleadings and arguments
unless Defendant DeMik is afforded the
adoption of codefendants motions, rulings
on motions, objections and rulings on ob-
jections, supporting United States of Amer-
ica v. Lawrence A. Shafer, et al[.], 384 F.
Supp. 496.
Demik was appointed new counsel, the fed-
eral public defender, who filed a motion for a
continuance of sentencing, asserting that ‘[t]he
basis [for] this request is that Mr. Demik sin-
cerely believes that he received ineffective as-
sistance of counsel at trial, and it will take
some time to receive the transcripts and to
hold a requested hearing.” Also, the federal
public defender filed a supplemental motion
for new trial, asserting numerous reasons why
Demik’s trial counsel was ineffective, such as
his failure to file an exhibit list, a witness list,
jury instructions, or any objections to the gov-
ernment’s filings.
Finally, Demik’s new attorney filed a mo-
tion for an evidentiary hearing regarding inef-
fective assistance. That motion did not make
any specific allegations about Demik’s trial
counsel but stated that Demik was requesting
the hearing to develop a record that would al-
low subsequent review of his ineffective assis-
tance claim.
The district court granted the motion for a
continuance of sentencing but denied a new
trial. The court stated that Demik’s supple-
mental motion for new trial had not been filed
timely, so it did not consider the arguments
from that motion. It did consider Demik’s al-
legations of ineffective assistance that he had
raised in his initial motion for new trial. The
court construed Demik’s pro se motion as
having argued that counsel was ineffective be-
cause counsel had (1) refused his direct in-
structions regarding critical motions and final
argument and (2) failed to make numerous
motions or objections. These allegations, the
court concluded, were insufficient, citing,
among other authorities and reasons, Miller v.
Johnson, 200 F.3d 274, 282 (5th Cir. 2000):
“[C]onclusory allegations are insufficient to
raise cognizable claims of ineffective assistance
of counsel.”
The court also denied an evidentiary hear-
ing. Demik argues that the court erred in that
ruling and contends that he raised that issue
through the various motions described above.
II.
We have not previously articulated what
standard of review to use, on direct appeal, to
evaluate the denial of an evidentiary hearing
regarding a claim of ineffective assistance of
counsel. In cases involving petitions for writs
of habeas corpus under 28 U.S.C. § 2255, we
review the denial of an evidentiary hearing for

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abuse of discretion.1 We now apply that stan-
dard on direct appeal.
III.
Demik contends that a district court must
hold an evidentiary hearing on a claim of inef-
fective assistance of counsel unless the record
conclusively shows the defendant is entitled to
no relief.2 We need not decide whether that
standard applies here in a case on direct ap-
peal, because conclusional allegations are in-
sufficient to require an evidentiary hearing. 3
Even Bartholomew, 974 F.2d at 42, on which
Demik relies, suggests that a complaint must
have specificity to support a claim of ineffec-
tive assistance of counsel. Without such speci-
ficity, the allegation does not require an evi-
dentiary hearing. Id.
Demik has raised only conclusional allega-
tions that his counsel was ineffective. In his
pro se motion for new trial, he makes general-
ized assertions about counsel’s failure to file
motions, to make objections, and to follow
Demik’s instructions. He does not, however,
allege what actions his attorney should have
taken or how those actions would have affect-
ed the outcome of the trial.
In his pro se motion to adopt his co-de-
fendants’ motions, Demik asserts onlyone mo-
tion that his trial counsel did not file despite
Demik’s instructions, but he makes no attempt
to describe any harm resulting from that fail-
ure. Furthermore, that motion did not request
an evidentiary hearing regarding ineffective as-
sistance of counsel, but only requested that the
court allow Demik to adopt his co-defendants’
motions and objections. Similarly, the federal
public defender’s motions for a continued
sentence and evidentiary hearing fail to state
specific reasons whyDemik’s trial counsel was
ineffective; the motions merely make a general
claim that trial counsel was ineffective.4
AFFIRMED.
1 United States v. Cervantes, 132 F.3d 1106,
1110 (5th Cir. 1998); United States v. Bartholo-
mew, 974 F.2d 39, 41 (5th Cir.1992) (per curiam).
2 See Bartholomew, 974 F.2d at 41 (“A motion
brought under 28 U.S.C. § 2255 can be denied
without a hearing only if the motion, files, and rec-
ords of the case conclusively show that the prisoner
is entitled to no relief.”).
3 See Davis v. Butler, 825 F.2d 892, 895 (5th
Cir. 1987) (“Given his lack of concrete allegations
which would require an evidentiary hearing, we de-
cline to consider this claim. See Petty v. McCotter,
779 F.2d 299, 301 (5th Cir. 1986); Hobbs v.
Blackburn, 752 F.2d 1079, 1083 (5th Cir.
1985).”).
4 We do not reach whether the supplemental
motion for a new trial stated allegations with suf-
ficient specificity, because that motion was not
timely filed, and the district court was within its
discretion not to consider it.

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