17 F.3d 1435
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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.
Dennis WILLIAMS, Defendant-Appellant.
No. 93-7081.
United States Court of Appeals, Fourth Circuit.
Submitted: January 20, 1994.
Decided: February 17, 1994.
Appeal from the United States District Court for the District of Maryland, at Baltimore. John R. Hargrove, District Judge. (CR-89-104-HAR, CA-92-2917-HAR)
Dennis Williams, Appellant Pro Se.
Billy S. Bradley, Assistant United States Attorney, Baltimore, Maryland, for Appellee.
D.Md.
AFFIRMED.
Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.
OPINION
PER CURIAM:
Dennis Williams appeals from the district court order denying his motion labelled as one pursuant to Fed.R.Civ.P. 60. We affirm.
Williams brought the current motion alleging error in the instructions at his criminal trial. His motion alleged a different error than that brought in his first 28 U.S.C. Sec. 2255 (1988) motion. The motion did not attack the district court's adjudication on the prior Sec. 2255 motion. Finally, the current motion requested habeas relief. Williams's motion should have been construed as a second Sec. 2255 motion, and we do so. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, 439 U.S. 970 (1978) (court should construe motions according to substance, not labels).
Regardless of how this motion was construed, it is clear that the district court properly denied the motion. The record and party submissions before this Court reveal the same infirmities in the current motion that beset Williams's first Sec. 2255 motion. Williams did not object to the instruction at trial nor raise the issue on appeal. He waived the issue for collateral attack. Stone v. Powell, 428 U.S. 465, 477 n. 10 (1976); United States v. Bryant, 612 F.2d 799 (4th Cir.1979), cert. denied, 446 U.S. 919 (1980). The error noted by Williams was inconsequential, his attorney did not err in not objecting to the error, and the error did not "infect" the entire trial, such that the conviction would violate due process. United States v. Frady, 456 U.S. 152, 167-69 (1982).
Therefore, we affirm the district court order denying relief on this motion.* 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.
We also note that the motion could have been properly dismissed because it was an abuse of the writ. See United States v. Oliver, 865 F.2d 600 (4th Cir.), cert. denied, 493 U.S. 830 (1989)