United States v. Burgess

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-7186

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: October 20, 1997 Decided: October 29, 1997

Before HALL, MURNAGHAN, and HAMILTON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Alan Hideto Yamamoto, Alexandria, Virginia, for Appellant. Robert Clifford Chesnut, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Michael Anthony Burgess appeals from the district court's order denying his motion for relief under 28 U.S.C. § 2255 (1994) (current version at 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997)). In a prior appeal, this court vacated and remanded to the district

court to conduct an evidentiary hearing, with appointed counsel, to determine whether Burgess requested his attorney to note an appeal

from his conviction. 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) (nonconstitutional claims not raised on direct ap-

peal 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