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*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should not be published.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. 92-2791
(Summary Calendar)
DENNIS MITCHELL LONG,
Petitioner-Appellant,
versus
JAMES A. COLLINS, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(CA-H-89-2910)
(March 15, 1993)
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Dennis Mitchell Long, a prisoner in the
Institutional Division of the Texas Department of Criminal Justice,
appeals the denial of his petition for habeas corpus in which he

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challenged his sentence as being violative of the Ex Post Facto
Clause and of the Due Process Clause of the Fifth and of the
Fourteenth Amendments. Long also alleged ineffective assistance of
counsel. Finding no reversible error by the district court in its
denial of Long's petition, we affirm.
I
FACTS AND PROCEEDINGS
The facts are not in dispute. Long was convicted by a jury of
aggravated robbery. He then pleaded true to an enhancement
paragraph, admitting his previous commission of a felony. The law
in effect at the time of sentencing, Tex. Penal Code Ann.
§ 12.42(c), provided punishment of confinement for not less than 15
years and not more than 99 years. See Tex. Penal Code Ann.
§ 12.42(c) (Vernon Supp. 1981). That statute was later revised,
allowing a fine up to $10,000. See Tex. Penal Code Ann. § 12.42(c)
(Vernon Supp. 1985). The jury imposed a term of 75 years'
confinement and a fine of $1000. Long directly appealed,
contending that the sentence imposed a penalty greater than that
authorized by law and thus violated the Ex Post Facto Clause.
The state court of appeals affirmed his conviction but ordered
that the judgment be reformed to delete the $1000 fine as provided
by article 37.10(b) of the Texas Code of Criminal Procedure. See
Tex. Code Crim. Proc. Ann., Art. 37.10(b) (Vernon Supp. 1990);
Ex parte Johnson, 697 S.W.2d 605, 607-09 (Tex. Crim. App. 1985)
(en banc).
Long did not file a petition for discretionary review, but

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subsequently filed a state petition for a writ of habeas corpus.
The state district judge, adopting the prosecution's answer,
recommended that the Texas Court of Criminal Appeals deny relief
because the deletion of the fine from Long's sentence mooted his
claim. Relief was denied without written order on the findings of
the trial court.
Long filed a § 2254 petition in federal district court
attacking his conviction on numerous grounds. He claimed, inter
alia: (1) the jury instruction on punishment was fundamentally
flawed and thus violated his right to due process under the Fifth
and Fourteenth Amendments and the Ex Post Facto Clause; and (2)
counsel was ineffective for failure to object to the jury
instruction.
A magistrate judge, concluding that Long's ex post facto
argument was moot and that he was not denied any rights to due
process or effective counsel, recommended that Long's habeas
petition be denied. The district court concurred with the
magistrate judge's "Memorandum and Recommendation," and an order
was entered which, in effect, granted appellee's motion for summary
judgment and denied relief under § 2254. Long appealed timely, and
the district court granted Long's motion for CPC.
II
ANALYSIS
A. Jury Instruction
Long argues that the jury instruction which applied the wrong
statute in violation of the Ex Post Facto Clause also violated his

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rights under the Due Process Clause not to be sentenced based on
materially false information. He also argues that the remedy for
violating his due process rights is for this court to vacate his
conviction for retrial or, alternatively, vacate the sentence and
remand for resentencing.
After Long was sentenced, the Texas Code of Criminal Procedure
was amended in 1985 to allow the trial court to reform the verdict
whenever a "jury assesses punishment in a case and in the verdict
assesses both punishment that is authorized by law . . . and
punishment that is not authorized by law." See Tex. Code Crim.
Proc. Ann., Art. 37.10(b) (Vernon Supp. 1993). This provision
allowing reformation of verdicts was reviewed by the U.S. Supreme
Court, which held that the provision as amended could be applied
retroactively without violating the Ex Post Facto Clause. Collins
v. Youngblood, 497 U.S. 37, 39-52, 110 S.Ct. 2715, 111 L.Ed.2d 30
(1990), rev'g Youngblood v. Lynaugh, 882 F.2d 956 (5th Cir. 1989).
The state court of appeals' deletion of the fine as "punishment
that is not authorized by law" thus cured the specific evil of
which Long complained. As that claim is now moot, Long argues on
appeal that he was also deprived of due process.
Long's reliance on Townsend v. Burke, 334 U.S. 736, 68 S.Ct.
1252, 92 L.Ed. 1690 (1948), is misplaced and unduly broad. In
Townsend, an unrepresented defendant was questioned by a prosecutor
in open court at a time after the defendant had pleaded guilty.
The prosecution questioned the defendant regarding crimes for which
he was found not guilty. The Supreme Court reversed, finding that

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comments by prosecution misled the trial court when it sentenced
the defendant "on the basis of assumptions concerning his criminal
record which were materially untrue." See Townsend v. Burke,
334 U.S. at 736-41. Long's is not such a case. The inaccurate
information before the jury did not focus on Long's criminal record
at all. Rather, it allowed the imposition of a penalty that was
unavailable at law.
Long's argument that retrial or resentencing is necessary
lacks merit. Before the Texas Legislature passed Article 37.10(b),
any verdict unauthorized by law rendered the judgment void, thus
leaving retrial as "the only course of action available" to remedy
the error. Ex parte Johnson, 697 S.W.2d at 605-08. Nevertheless,
Article 37.10(b) makes reversal of the conviction and retrial -- as
well as vacating the sentence for resentencing -- unnecessary. Id.
As the remedial measure provided by Article 37.10(b) "does not
constitute substantive law defining criminal acts or providing for
penalties, it is procedural in nature," id. at 607; see Collins v.
Youngblood, 497 U.S. at 44. Therefore, Long's reliance on state
case law decided before the enactment of Article 37.10(b) is
misplaced. The removal of the fine pursuant to Article 37.10(b) is
sufficient to cure the error, in part because its effect was to
decrease rather than increase the punishment. See id. at 44-52.
Neither does it deprive Long of any substantive right. See id.
Long's speculation as to how the jury might have deliberated
when given the wrong statute also lacks merit. Cf. Gryger v.
Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948)

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(speculation as to what trial court might have thought when it
applied sentencing statute not proper). Neither does judgment
meted out in violation of state law, alone, constitute a denial of
due process. Id.
For the reasons set forth above, Long's argument is meritless.
The district court's ruling denying Long's § 2254 petition was not
error.
B. Ineffective Assistance of Counsel
Long argues that counsel was ineffective for not opposing the
jury instruction containing the wrong sentencing statute. This
argument too is without merit. Long's claims alleging
ineffectiveness of counsel based on other grounds that were not
raised on appeal are abandoned. Hobbs v. Blackburn, 752 F.2d 1079
(5th Cir.), cert. denied, 474 U.S. 838 (1985).
A claim that counsel has been ineffective will prevail only if
the petition proves that such counsel was not only objectively
deficient (cause), but also that the petitioner was so prejudiced
by counsel's errors that the trial was unfair or unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). "Unreliability or unfairness does not
result if the ineffectiveness of counsel does not deprive the
defendant of any substantive or procedural right to which the law
entitles him." Lockhart v. Fretwell, U.S. , 113 S.Ct.
838, 844 (1993).
Long's argument that he was prejudiced by counsel's failure to
oppose the jury instruction is based on speculation how the jury

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might have imposed the sentence which was within the range allowed
by law after deletion of the $1000 fine. Long thus fails to show
that he was actually prejudiced by counsel's clear failure to
oppose the jury instruction. Neither does he show that he was
subjected to an unfair trial or denied any substantive or
procedural right. An ineffectiveness claim based on speculation or
conclusional rhetoric will not warrant § 2254 relief. See Lincecum
v. Collins, 958 F.2d 1271, 1279 (5th Cir.), cert. denied, 113 S.Ct.
417 (1992). Long's argument thus collapses. Under Strickland a
petitioner must satisfy both the cause and the prejudice prongs.
As Long has failed to carry the day on the prejudice issue, we need
not address cause.
For the reasons set forth above, the district court's rulings
are
AFFIRMED.

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