(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should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10703
Summary Calendar
EDWARD CHARLES CROCKETT, Petitioner-Appellant,
versus
WAYNE SCOTT, Director, Institutional
Division, Texas Department of Criminal
Justice, Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(4:93-CV-838-Y)
(February 6, 1995)
Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Crockett had no Sixth Amendment right to have an attorney
present at his live lineup because he had not yet been indicted.
United States v. McClure, 786 F.2d 1286, 1290 (5th Cir. 1986).
This lineup was not impermissibly suggestive because everyone in
the lineup was wearing jail clothes. Even if the lineups were

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suggestive, Williams's testimony is admissible because Williams had
a good opportunity to see the robber, immediately identified him on
videotape, and was positive that Crockett was the robber. See
Cantu v. Collins, 967 F.2d 1006, 1014 (5th Cir. 1992), cert.
denied, 113 S. Ct. 3045 (1993).
We defer to the trial court's acceptance of the prosecution's
race-neutral reason for striking two black jurors. See United
States v. Collins, 972 F.2d 1385, 1403 (5th Cir. 1992), cert.
denied, 113 S. Ct. 1812 (1993). We also defer to the state habeas
court's finding that the prosecution did not knowingly use perjured
testimony regarding when an officer used a baton against Crockett.
28 U.S.C. § 2254(d). And the baton incident was immaterial to the
defense, so failure to disclose the police report did not violate
Brady v. Maryland, 373 U.S. 83, 87 (1963). Crockett argues for the
first time on appeal that the state suppressed a videotape of the
robbery, but we will not consider this new argument.
Admission of evidence that suggested that Crockett had
previously robbed cigarettes from the same store was not
unconstitutional, since there was a rational link to the charged
offense. Enriquez v. Procunier, 752 F.2d 111, 115 (5th Cir. 1984),
cert. denied, 471 U.S. 1126 (1985). It was not fundamentally
unfair to admit the witness lineup identification form, since it
was merely cumulative of Williams's in-court testimony. Nor was
the prosecutor's closing argument about the need to deter criminals
and incapacitate Crockett fundamentally unfair.

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Crockett's attorney made a reasonable professional judgment
not to call Crockett's previous attorney and parole officer as
witnesses because that testimony would have been cumulative and
seen as biased. Finally, because Crockett has not alleged any
facts which, if proven, would entitle him to habeas relief, he had
no right to an evidentiary hearing. AFFIRMED.

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