UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4968
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN WAYNE HOWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00076-RLV-DSC-1)
Submitted: August 28, 2014 Decided: October 1, 2014
Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank Alan Abrams, LAW OFFICE OF FRANK ALAN ABRAMS, Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee .
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Wayne Howell pled guilty pursuant to a plea
agreement to one count of conspiracy to commit interstate
domestic violence in violation of 18 U.S.C. §§ 371, 2261(a)(2)
(2012). The court sentenced Howell to the statutory maximum
term of sixty months’ imprisonment. Howell appeals, 1 alleging
claims of ineffective assistance of counsel and prosecutorial
misconduct. 2 We affirm.
Howell asserts on appeal that counsel was ineffective
for failing to move to dismiss the indictment, which he contends
was defective. To prove a claim of ineffective assistance of
counsel, a defendant must show (1) “that counsel’s performance
was deficient,” and (2) “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). With respect to the first prong, “the
defendant must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. In
addition, “[j]udicial scrutiny of counsel’s performance must be
1
The record reflects that Howell filed an untimely pro se
appeal, allegedly because counsel failed to file a timely appeal
on his behalf. The government has stated, however, that it does
not seek to dismiss the appeal as untimely.
2
In the plea agreement, Howell agreed to waive appeal of
his conviction and sentence except for claims asserting
ineffective assistance of counsel and prosecutorial misconduct.
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highly deferential.” Id. at 689. Under the second prong of the
test in the context of a conviction following a guilty plea, a
defendant can show prejudice only by demonstrating “a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985). Moreover, this court may
address a claim of ineffective assistance on direct appeal only
if the lawyer’s ineffectiveness conclusively appears on the
record. United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006). We have reviewed the record and find that
ineffective assistance of counsel does not conclusively appear
on the record. Accordingly, we may not review this claim on
direct appeal.
Next, Howell alleges prosecutorial misconduct,
asserting that the government improperly indicted him when there
was no evidence that he was guilty of conspiracy and because he
was, at worst, a witness to the abuse inflicted on the victim.
To prevail on a due process claim of prosecutorial misconduct,
the defendant must show both misconduct and resulting prejudice.
See United States v. Caro, 597 F.3d 608, 624 (4th Cir. 2010)
(“In assessing alleged prosecutorial misconduct, [this court]
ask[s] whether the misconduct so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.” (internal quotation marks omitted)). Our review
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discloses that Howell’s claim is meritless, as he fails to show
either misconduct or prejudice.
We accordingly affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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