UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7645
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES GORMLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:98-cr-00152-2; 3:03-cv-00340)
Submitted: February 14, 2008 Decided: February 29, 2008
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Gormley, Appellant Pro Se. Philip Henry Wright, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Gormley appeals from the district court’s entry of
judgment on his 28 U.S.C. § 2255 (2000) motion for relief from
judgment. The district court awarded a certificate of
appealability (“COA”) to Gormley on his contention that trial
counsel rendered constitutionally ineffective assistance of counsel
when he failed to persuade the trial court to accept his “theory of
the defense” instruction and failed to preserve the issue for
appeal. We deny relief on this issue and affirm.
In an appeal from the denial of a § 2255 motion, we
review de novo the district court’s legal conclusions. United
States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007). In order
to succeed on a claim of ineffective assistance, a defendant must
show that his counsel’s performance fell below an objective
standard of reasonableness and that counsel’s deficient performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). Under the first prong of Strickland, there is a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. at 689. To satisfy the
second prong, the defendant must show that there is a reasonable
probability that his attorney’s errors altered the outcome of the
proceeding. Id. at 694.
Having reviewed the record and the district court’s
decision, we conclude that Gormley cannot establish that trial
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counsel was ineffective in his conduct regarding a “theory of the
defense” instruction.* Thus, we affirm the portion of the district
court’s order rejecting this claim for the reasons stated by the
district court. United States v. Gormley, Nos. 3:98-cr-00152-2;
3:03-cv-00340 (S.D. W. Va. June 22, 2006). 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 addition, to the extent that appellate counsel’s failure
to raise this issue on appeal was included in the district court’s
certificate of appealability, we find that this claim fails under
Strickland, as well.
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