UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-7086

RAYMOND CHERISSON, a/k/a Haitian

James,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CR-94-97-15-5-BO, CA-98-69-5-BO)

Submitted: January 29, 1999

Decided: March 22, 1999

Before ERVIN and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed in part and vacated and remanded in part by unpublished

per curiam opinion.

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COUNSEL

Raymond Cherisson, Appellant Pro Se. Fenita Morris Shepard,

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North

Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Raymond Cherisson seeks to appeal the district court's order denying his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp.

1998). Cherisson raises several claims of ineffective assistance of

counsel. We have reviewed the record and the district court's opinion

and find no reversible error as to most of his claims.

Cherisson has submitted a photocopy of his passport, previously

unavailable, to support his allegation that his appointed attorney was

ineffective for failing to obtain the passport and introduce it at trial.

Cherisson claims that the passport proves that he could not have committed any of the substantive counts of distribution because he was

out of the country in August, September, and October 1993. With

regard to the distribution counts covering August and October, even

if the passport does verify the travel dates Cherisson claims, Cherisson was not prejudiced by counsel's failure to obtain the passport for

use at trial. However, with regard to the distribution count covering

September 1993, there is some indication that the stamped travel

dates support Cherisson's claim that he was in Haiti for the entire

month.* The record does not indicate that any evidence was introduced to establish that Cherisson did anything outside of North Carolina to promote drug sales in the state. Therefore his conviction may

be solely based on evidence of his actions in the state.

Because the passport is new evidence, originally unavailable to the

district court, that may have some bearing on the September 1993 distribution count, we vacate and remand as to this claim for further proceedings in light of this new submission. See generally Zenith Radio

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*We note that the photocopy of the passport is not clear. The district

court may consider allowing Cherisson to supplement the record in this

case to include the original passport.

 2
Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969). We

affirm as to all of Cherisson's other claims. 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, VACATED AND REMANDED IN PART

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