UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4408
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ORLANDO MARVEL COOPER, a/k/a Orlando Marvel Horton,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00123-NCT-1)
Submitted: September 1, 2009 Decided: October 14, 2009
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Michael F. Joseph,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Orlando Marvel Cooper, a/k/a Orlando Marvel Horton
(“Horton”) 1 , appeals his convictions for possession of ammunition
by a convicted felon (“Count One”) and possession of firearms by
a convicted felon (“Count Two”), both in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (2006), and making false statements
to a government agent (Count Three”) in violation of 18 U.S.C.
§ 1001(a)(2) (2006).
Horton was convicted of Count Three after his first
trial, at which a mistrial was declared as to Counts One and Two
because the jury was unable to reach a verdict as to those
counts. He was convicted on Counts One and Two following a
second trial. Horton argues on appeal that his trial counsel at
his first trial was ineffective for withdrawing his motion to
suppress evidence, consisting of firearms and ammunition, that
was located during a search, because he contends that he did not
consent to the search. Horton also argues that counsel at his
second trial was ineffective because he did not object to the
presentation of evidence regarding his false statements to a
Government agent at his second trial, because it was not
1
Appellant has been variously referred to as Cooper and
Horton.
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relevant to the issues of his possession of firearms and
ammunition.
We may address on direct appeal a claim that counsel
was ineffective only if the ineffectiveness appears conclusively
on the face of the record. United States v. Baldovinos, 434
F.3d 233, 239 (4th Cir. 2006). To establish a violation of the
Sixth Amendment due to ineffective assistance of counsel, Horton
must demonstrate that (1) counsel’s representation fell below an
objective standard of reasonableness; and (2) there is a
reasonable probability that he was prejudiced by counsel’s
unprofessional errors. See Strickland v. Washington, 466 U.S.
668, 688, 694 (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. A reviewing court must be highly deferential in
scrutinizing counsel’s performance and must filter from its
analysis the distorting effects of hindsight. Id. If Horton
cannot show prejudice, this Court need not consider the
reasonableness of his counsel’s performance. Quesinberry v.
Taylor, 162 F.3d 273, 278 (4th Cir. 1998).
The record does not conclusively establish that
Horton’s counsel was ineffective with respect to either issue he
raises on appeal. Two police officers testified at trial that
Horton consented to the search of his person and belongings.
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Horton and his girlfriend, Sunni Chambers, testified that they
did not voluntarily consent to the search. However, it is
unlikely that the latter testimony would have been found more
credible at a hearing on the motion to suppress, in light of
extensive evidence presented at trial, in the form of recordings
of telephone conversations between Horton and Chambers while
Horton was in prison awaiting trial, in which they discussed
their plans for Chambers to present false affidavits and
testimony to prosecutors and the court in this case. Similarly,
even assuming that Horton’s counsel could have successfully
excluded the evidence of his false statements to Government
agents at his second trial, it does not appear that the evidence
prejudiced him in any way, because his credibility would still
have been seriously undermined by the evidence of his telephone
conversations with Chambers.
Because ineffectiveness of counsel at either Horton’s
first or second trials does not conclusively appear on the
record, we cannot consider Horton’s claims on direct appeal.
Instead, Horton must pursue any claims of ineffectiveness of
counsel, should he be so advised, in an appropriate proceeding
for post-conviction relief. Accordingly, we affirm the district
court’s judgment. We deny Horton’s motion to file a pro se
supplemental brief. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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