UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7118
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIBEL CLARK,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Henry M. Herlong, Jr., District
Judge. (CR-01-56; CA-04-747-4-20)
Submitted: March 18, 2005 Decided: April 14, 2005
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Tibel Clark, Appellant Pro Se. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tibel Clark appeals from the district court’s orders
denying relief on his motion filed under 28 U.S.C. § 2255 (2000)
and denying his motion for reconsideration. The district court has
granted a certificate of appealability as to Clark’s argument that
he was denied the effective assistance of counsel when counsel
failed to argue that one of Clark’s prior convictions was not for
a crime of violence, and therefore was erroneously counted as a
predicate offense to his career offender enhancement. U.S.
Sentencing Guidelines Manual § 4B1.1 (2000).
The statute under which Clark was convicted, entitled
“Felonious Assault,” provides in pertinent part:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to
another’s unborn;
(2) Cause or attempt to cause physical harm to another
or to another’s unborn by means of a deadly weapon
or dangerous ordnance.
Ohio Rev. Code Ann. § 2903.11(A) (Anderson 1996). Although Clark
was originally charged with aggravated felonious assault with a
firearm, the offense to which he pled guilty did not include the
aggravated nature of the offense and also deleted the reference to
the firearm. However, by its terms, § 2903.11 is a crime that
involves the causing of serious physical injury or the attempt to
cause physical injury by use of a deadly weapon. Thus Clark’s
prior conviction under this statute constitutes a crime of violence
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under USSG § 4B1.1. See USSG § 4B1.2, comment. (n.1); United
States v. Pierce, 278 F.3d 282, 288-89 (4th Cir. 2002); see also
USSG § 4B1.2(a)(2) (defining crime of violence to include any
offense “that presents a serious potential risk of physical injury
to another”).
Because the statute under which Clark was convicted
categorically constitutes a crime of violence, any objection by
counsel to counting this conviction as a crime of violence would
have been futile. Thus, Clark cannot show that he was prejudiced
by any deficiencies in counsel’s performance. See Strickland v.
Washington, 466 U.S. 668, 688-89, 694 (1994). Accordingly, we
affirm the district court’s denial of relief on this claim.
With regard to the other issues Clark seeks to argue on
appeal, an appeal may not be taken from the final order in a § 2255
proceeding unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of
appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that the district court’s assessment of his
constitutional claims is debatable or wrong and that any
dispositive procedural rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
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252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed
the record and conclude that Clark has not made the requisite
showing. Accordingly, we decline to expand the certificate of
appealability beyond that granted by the district court, we deny a
certificate of appealability, deny Clark’s motion for appointment
of counsel, and dismiss the appeal in part. 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 IN PART;
DISMISSED IN PART
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