United States v. Barber

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 13, 1997
• Docket: 96-7505
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 96-7505

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRANK LEWIS BARBER,

Defendant - Appellant.

Appeal from the United States District Court for the Middle Dis- trict of North Carolina, at Salisbury. Frank W. Bullock, Jr., Chief District Judge. (CR-92-88-S, CA-96-192-4)

Submitted: February 27, 1997 Decided: March 13, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Danny Thomas Ferguson, Winston-Salem, North Carolina, for Appel- lant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Appellant seeks to appeal the district court's order granting

in part and denying in part his motion filed under 28 U.S.C. § 2255

(1994), amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. We have reviewed the

record and the district court's opinion and find no reversible

error. Appellant failed to raise his Fourth Amendment claim on

direct appeal and he has not shown prejudice from his counsel's

failure to raise the claim. See Whren v. United States, ___ U.S.

___, 64 U.S.L.W. 4409 (U.S. June 10, 1996) (No. 95-5841); United States v. Frady, 456 U.S. 152, 167 (1982). Further, this Court will

not second-guess counsel's tactical decision regarding cross-

examination of a Government witness. Goodson v. United States 564

F.2d 1071, 1072 (4th Cir. 1977). Accordingly, we deny a certificate

of appealability and dismiss the appeal on the reasoning of the

district court. United States v. Barber, Nos. CR-92-88-S; CA-96- 192-4 (M.D.N.C. Aug. 27, 1996). We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the deci-

sional process.

DISMISSED