United States v. Burgess

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 19, 1996
• Docket: 95-7967
• Status: Unpublished

Opinion

Rehearing granted, January 22, 1997 Remanded by court order dated January 22, 1997

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 95-7967

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL BURGESS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CR-88-233-A, CA-92-1816-AM)

Submitted: September 10, 1996 Decided: September 19, 1996

Before HALL, MURNAGHAN, and HAMILTON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael Burgess, Appellant Pro Se. Robert Clifford Chesnut, Assis- tant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). Rehearing granted, January 22, 1997 Remanded by court order dated January 22, 1997

PER CURIAM:

Michael Anthony Burgess appeals from the district court's

order denying his motion for relief under 28 U.S.C. § 2255 (1994),

as amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. In a prior appeal, this

court vacated and remanded to the district court to conduct an

evidentiary hearing to determine whether Burgess requested his

attorney to note an appeal from his conviction. United States v.

Burgess, No. 94-6883(L) (4th Cir. June 22, 1995) (unpublished). The

district court concluded, after hearing testimony from Burgess and

his attorney, that Burgess had not, in fact, asked his attorney to

appeal. Our review of the transcript from that hearing reveals that the district court's conclusion was properly supported. Because

Burgess failed to appeal, his other claims are waived. See United States v. Emanuel, 869 F.2d 795, 796 (4th Cir. 1989) (nonconsti-

tutional claims not raised on direct appeal may not be asserted in

a collateral proceeding). Accordingly, we affirm the district

court's judgment. 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 decisional process.

AFFIRMED