United States v. Frank Lewis Barber

108 F.3d 1373, 1997 U.S. App. LEXIS 10450, 1997 WL 111910

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• Status: Unpublished

Opinion

108 F.3d 1373

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Frank Lewis BARBER, Defendant-Appellant.

No. 96-7505.

United States Court of Appeals, Fourth Circuit.

Submitted Feb. 27, 1997.
Decided March 13, 1997.

Danny Thomas Ferguson, Winston-Salem, North Carolina, for Appellant.

Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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 decisional process.

DISMISSED.