(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8519
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DONNY JOEL HARVEY,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(W 91 CA 175 (W 88 CR 035))
(April 26, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Appellant Donny Joel Harvey, represented by Attorney Walter M.
Reaves, Jr., was convicted by a jury of possession of a firearm by
a convicted felon, 18 U.S.C. §§ 922(g)(1) and 924(a). Harvey
received the maximum 60-month prison term, three years' supervised

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1 We note that this Court's recent en banc opinion in United
States v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc),
criticized this decision. Lambert states that our decision on
Harvey's direct appeal misapplied U.S.S.G. § 4A1.3. Id. at 662.
Harvey does not challenge the propriety of his sentencing in this
proceeding.
2
release, and a $1,000 fine. On direct appeal, wherein Mr. Reaves
also represented Harvey, the judgment was affirmed. United States
v. Harvey, 897 F.2d 1300 (5th Cir.), cert. denied, 111 S. Ct. 568
(1990).1
After Harvey filed a § 2255 motion in June 1991, he moved for
a change of venue and recusal of the trial judge. The magistrate
judge denied the motion and the district court denied Harvey's
appeal of the ruling. The magistrate judge allowed Harvey to file
two supplements to his § 2255 motion, but denied his applications
to file a third and a fourth supplement. Those later supplements
are not in the record.
The magistrate judge filed a lengthy report recommending
denial of § 2255 relief. Harvey filed objections. The district
court, adopting the magistrate judge's report and stating
additional reasons, dismissed the action. The district court found
that Harvey is a pauper but that there was no "probable cause" for
an appeal. Because the district court did not find that Harvey
lacked "good faith," this Court docketed the appeal in forma
pauperis (IFP).
The Government contends that relief on most of Harvey's
§ 2255 grounds (appellate issues 3-6 and 9) is barred by his
failure to raise them at trial or on direct appeal. A convicted

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3
person ordinarily "may not raise an issue for the first time on
collateral review without showing both `cause' for his procedural
default, and `actual prejudice' resulting from the error." United
States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc)
(citing United States v. Frady, 456 U.S. 152, 168, 102 S. Ct. 1584,
71 L. Ed. 2d 816 (1982)), cert. denied, 112 S. Ct. 978 (1992). "To
invoke the procedural bar [in a § 2255 case], however, the
government must raise it in the district court." United States v.
Drobny, 955 F.2d 990, 995 (5th Cir. 1992). The Government did not
do so in this case, and the district court did not raise the bar
sua sponte. See Wiggins v. Procunier, 753 F.2d 1318, 1321 (5th
Cir. 1985).
Harvey contends that he "has been denied a fair and impartial
judge" by the trial judge's failure to recuse himself. He argues
that the judge has a personal interest in the outcome of this §
2255 proceeding because his pending civil rights action names the
judge as a defendant and alleges the judge's involvement in the
filing of an inaccurate and incomplete record in Harvey's direct
appeal.
Since "[a] motion for recusal is committed to the sound
discretion of the trial judge," its denial will be reversed only if
the judge has abused his discretion. United States v. Merkt, 794
F.2d 950, 960 (5th Cir. 1986), cert. denied, 480 U.S. 946 (1987).
Both 28 U.S.C. § 144 and § 455 authorize such motions. See United
States v. Miranne, 688 F.2d 980, 984 (5th Cir. 1982), cert. denied,
459 U.S. 1109 (1983).

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4
A recusal motion which alleges personal bias or prejudice,
such as Harvey's, must be accompanied by a "timely and sufficient
affidavit" which sets out the alleged bias or prejudice. 28 U.S.C.
§ 144. In order for the affidavit to be legally sufficient, "(1)
the facts must be material and stated with particularity; (2) the
facts must be such that, if true, they would convince a reasonable
person that bias exists; and (3) the facts must show that the bias
is personal, rather than judicial, in nature." Merkt, 794 F.2d at
960 n.9.
Harvey's affidavit was filed after the magistrate judge ruled
on his recusal motion, but before the trial judge ruled on it.
Thus, it may have been timely. However, it is legally insufficient
because it does not allege any personal bias of the trial judge.
As a matter of law, the trial judge has no personal interest in
Harvey's § 1983 action naming him a defendant, because the judge
has absolute immunity from liability for § 1983 damages. See Stump
v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978).
Harvey suggests that the trial judge has a personal interest
in the outcome of this § 2255 proceeding because he faces
prosecution if it be shown that he was implicated in filing an
inaccurate record. This Court will not consider this argument
because it was not asserted in Harvey's recusal affidavit. See
Merkt, 794 F.2d at 961.
Harvey contends that the district court's (initially, the
magistrate judge's) refusal to allow him to review the electronic
tape of the March 10, 1989, pretrial hearing constitutes a denial

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5
of due process. Harvey avers that the electronic tape would show
that as he was being dragged from the courtroom, he demanded the
right to proceed pro se. The written transcript states only: "THE
DEFENDANT: (Continuing to talk.)" as the marshal removed Harvey
from the courtroom.
On request of the Court, the Clerk's office has had the
relevant portion of the tape filed as an exhibit. Our review of
the tape satisfies us that Harvey did not make any remark by which
he indicated that he desired to waive counsel and proceed pro se.
Thus, the tape supports the district court's finding that the
transcript was not inaccurate, and it does not support Harvey's
contention.
Harvey contends that the district court erred by finding that
he did not waive his right to counsel and request to proceed pro se
upon his criminal trial. He relies solely on his assertion that he
demanded the right to proceed pro se at the March 10, 1989,
hearing.
The defendant in a criminal case, "in the exercise of a free
and intelligent choice, and with the considered approval of the
court, may ... waive his Constitutional right to assistance of
counsel." Adams v. United States ex rel. McCann, 317 U.S. 269,
275, 63 S. Ct. 236, 87 L. Ed. 268 (1942). However, the defendant's
expression of his desire to proceed pro se must be clear and
unequivocal. Faretta v. California, 422 U.S. 806, 835-36, 95 S.
Ct. 2525, 45 L. Ed. 2d 562 (1975). Accordingly, a court "cannot
infer both a waiver of counsel and a demand by the defendant to

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6
represent himself from ... general statements of dissatisfaction
with counsel." Moreno v. Estelle, 717 F.2d 171, 175 (5th Cir.
1983), cert. denied, 466 U.S. 975 (1984).
Harvey did not even make "general statements of
dissatisfaction with [his] counsel" at the pretrial hearing. This
is shown both by the transcript and the tape. After the court took
a recess, Harvey was brought back into the courtroom for the
remainder of the hearing. The court allowed him to confer with his
counsel once, off the record, and the attorney continued to perform
as such for the rest of the hearing. At no time thereafter did
Harvey ask for leave to proceed pro se; and after sentencing, he
requested that Mr. Reaves be appointed to represent him on direct
appeal.
Harvey contends that he is entitled to § 2255 relief on
grounds that the prosecutor impermissibly and prejudicially
commented to the jury on his remaining silent following his arrest.
This refers to the prosecutor's eliciting police officer Raymond
Moore's trial testimony that after Harvey was detained, he remained
silent when Moore asked if he possessed any weapons. The
prosecutor elicited similar testimony from Harvey on cross-
examination, after Harvey had testified on direct that he had been
threatened and followed. There was no defense objection to these
questions.
The prosecutor's actions were not improper because Harvey's
Fifth Amendment right to remain silent was never implicated. On
direct appeal, this Court held that Harvey was legally "Terry-

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7
stopped" when Moore questioned him; therefore, it was not necessary
to determine whether he was under arrest when he was later
searched. United States v. Harvey, 897 F.2d at 1303-04. This is
the law of the case. See Lynn v. Fisher, 888 F.2d 1071, 1074 (5th
Cir. 1989), cert. denied, 495 U.S. 948 (1990). It is
constitutionally permissible for the prosecution to impeach "a
testifying defendant by reference to his pre-arrest silence."
United States v. Cardenas Alvarado, 806 F.2d 566, 572 (5th Cir.
1986). That is what happened at Harvey's trial.
Harvey contends that the district court erred by finding that
the evidence was sufficient for the jury to find that he had a
prior felony conviction for purposes of 18 U.S.C. § 922(g). Harvey
relies on 18 U.S.C. § 921(a)(20), which provides in relevant part
that "[w]hat constitutes a conviction of [a "crime punishable by
imprisonment for a term exceeding one year," § 922(g)] shall be
determined in accordance with the law of the jurisdiction in which
the proceedings were held." The subsection provides further that
a conviction as to which a person has had his civil rights restored
shall not be considered a § 922(g) conviction unless the
restoration expressly prohibits activities involving firearms.
Harvey asserts that the underlying felony alleged in the
indictment was his 1975 burglary conviction, for which he received
a 10-year sentence. He reasons that he would have completed this
sentence in 1985 and the alleged § 922(g) offense occurred more
than two years later. He argues that Tex. Elec. Code Ann. § 11.002
(West Supp. 1993) automatically restored his right to vote two

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8
years after the time expired on his 1975 sentence, and that this
shows that his right to bear arms also was restored.
Section 11.002 of the Election Code provides in relevant part
that a convicted felon becomes qualified to vote two years after he
receives a certificate of discharge from the Board of Pardons and
Paroles. Harvey does not allege that he ever received such a
discharge relative to his 1975 conviction. Moreover, the
underlying burglary conviction alleged in his § 922(g) indictment
actually was his 1979 conviction of burglary of a church, as to
which he received a 30-year sentence and was on parole at the time
of his federal firearm offense. Presentence report 6. Thus,
Harvey's right to vote was not restored by operation of § 11.002 or
any other state law. See Shepherd v. Trevino, 575 F.2d 1110 (5th
Cir. 1978), cert. denied, 439 U.S. 1129 (1979).
Harvey argues that the right to bear arms is protected by Tex.
Const. art. 16, § 2, which does not limit the right to those who
have not committed a felony. He asserts that the only fire-arm
restriction found in Tex. Penal Code Ann. (West 1974) is § 46.05,
which prohibits possession of a weapon away from the home by one
who has been convicted of a violent felony. These provisions are
irrelevant to whether a defendant has been convicted of a state
felony for purposes of 18 U.S.C. § 922(g), as set forth in §
921(a)(20).
The cases which Harvey relies on, which involve express
restoration of civil rights to felons under the law of other
states, are not relevant to Harvey's case. Under Texas law, the

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9
only provision for release from disabilities resulting from
conviction of a felony, other than pardon and § 11.002 of the
Election Code, is for probationers who satisfactorily fulfill the
conditions of probation. Tex. Crim. Proc. Code Ann. art. 42.12, §
23 (West Supp. 1993); see Payton v. State, 572 S.W.2d 677 (Tex.
Crim. App. 1978)(en banc). Thus, Harvey's 1979 burglary conviction
was a valid predicate conviction relative to his prosecution for
the violation of § 922(g).
Harvey contends that Mr. Reaves failed to represent him
effectively at trial and on direct appeal. He presents no argument
except to list his § 2255 grounds which were not presented by his
counsel, who represented him in both courts, and he has failed to
cite any supporting authorities except that he briefly refers to
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
In order to obtain § 2255 relief on grounds of ineffective
assistance, Harvey would have to show both (1) that Mr. Reaves's
performance was deficient, falling below an objective standard of
reasonableness, and (2) that there is a reasonable probability that
the deficient performance prejudiced his defense, i.e., that but
for the errors, "the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. at 687-88, 694.
Because Harvey's brief fails to present argument on the crucial
question whether Mr. Reaves's performance was deficient, we reject
his ineffectiveness-of-counsel claims. See Thompkins v. Belt, 828
F.2d 298, 302 (5th Cir. 1987).

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10
Harvey contends that his three-year supervised-release term is
illegal, citing United States v. Allison, 953 F.2d 870 (5th Cir.),
cert. denied, 112 S. Ct. 2319 (1992). Allison, at 875, states that
"no supervised release is allowed under the punishment provisions
of 18 U.S.C. § 924," whereunder Harvey was sentenced. The district
court refused to allow Harvey to supplement his § 2255 motion to
allege this ground for relief. In any event, this contention lacks
merit because this Court recently recognized that the prior opinion
of this Circuit in United States v. Van Nymegen, 910 F.2d 164, (5th
Cir. 1990) is the controlling authority as to supervised release
being an available part of punishment for violations of 18 U.S.C.
§ 924. United States v. Wangler, F.2d , (5th Cir. 1993)
citing United States v. Langston, No. 92-1528 (5th Cir. Feb. 19,
1993)(unpublished opinion).
Pending Motions
Harvey has filed motions for the appointment of (1) an audio
expert to determine whether the tape copy is authentic and (2)
counsel to assist him in overseeing and retrieving the results of
the audio expert's investigation. Harvey also requests that the
original tape be produced and made available to the audio expert.
It is not clear whether he is requesting permission to listen to
the tape himself. Harvey asserts that the members of the judicial
panel cannot determine whether the tape has been altered.
The copy of the tape does not produce any sounds which even
remotely indicate that Harvey requested leave to waive counsel and
proceed pro se. Nor has Harvey suggested any reason why the court

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11
reporter would falsify the tape copy. In our view, no valid
purpose would be served by allowing Harvey to listen to the tape
personally. We deny his pending motions.
The judgment of the trial court is AFFIRMED.

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