UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-7667

WALTER A. SCHULTE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CR-95-17)

Submitted: August 29, 2000

Decided: September 26, 2000

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Walter A. Schulte, Appellant Pro Se. Karen Breeding Peters, Assistant United States Attorney, Roanoke, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Walter Schulte filed a motion pursuant to 28 U.S.C.A. § 2255

(West Supp. 2000), challenging his conviction and sentence for

charges arising from the theft and interstate transportation of heavy

construction equipment. The district court denied relief, and Schulte

timely appealed.*

In his informal brief to this Court, Schulte first claims that the

search warrant issued to authorize the search of his home was invalid.

Specifically, Schulte attacks the veracity of the statements made in

the warrant application affidavit, and states his conclusory belief that

the officers executing the warrant acted in bad faith.

Once a litigant is provided a full and fair opportunity to litigate a

Fourth Amendment claim, he cannot re-litigate the claim in a motion

pursuant to § 2255 unless there has been an intervening change in

law. See Stone v. Powell, 428 U.S. 465, 494 (1976); Davis v. United

States, 417 U.S. 333, 342 (1974). The record reflects that Schulte was

given a full and fair opportunity to litigate this claim at trial. Accordingly, Schulte cannot re-litigate this claim in a§ 2255 motion. See

Wright v. Wainwright, 537 F.2d 224, 226 n.4 (4th Cir. 1976).

Schulte also claims that his conviction was a product of various

instances of prosecutorial misconduct. In his informal brief, Schulte

claims that he was improperly impeached at trial when the Government questioned him about false statements on a gun permit and the

affidavit he submitted to obtain court-appointed counsel. He further

asserts that the Government used "false statements" in evidence.

Schulte raised, and this court considered, all of these claims in his

direct appeal. United States v. Schulte, No. 96-4758, 1998 WL 77851,

**2 (4th Cir. Feb. 24, 1998) (unpublished). Therefore, Schulte cannot

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*Schulte's original filing was filed as a 28 U.S.C.§ 2241 (1994) petition in the Southern District of New York. The district court for the

Southern District of New York liberally construed the petition as a

motion pursuant to § 2255 and transferred the motion to the district court

for Western District of Virginia.

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re-litigate this claim in a § 2255 motion. See United States v. Emanuel, 869 F.2d 795, 796 (4th Cir. 1989); Boekenhaupt v. United States,

537 F.2d 1182, 1183 (4th Cir. 1976).

Schulte next claims that he was denied a fair trial when the trial

judge allegedly made prejudicial comments and attended a social dinner with his trial counsel during his trial. Although Schulte could have

raised these claims on direct appeal to this Court, he failed to do so.

Therefore, he may not advance the claim in a § 2255 motion. See

Emanuel, 869 F.2d at 796.

Schulte's remaining claims involve his allegations that his trial

attorney was constitutionally ineffective at various stages in the trial.

To establish a claim of ineffective assistance of counsel, Sutton must

prove that his counsel's performance was unconstitutionally deficient,

and that the deficiency prejudiced his defense. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). With respect to the prejudice

prong of Strickland, the reviewing court considers whether the

claimed ineffectiveness was so acute as to render the proceeding fundamentally unfair or unreliable. Strickland, 466 U.S. at 694. Moreover, Schulte must overcome the strong presumption that any action

taken by counsel "might be considered sound trial strategy." Id. at

689.

Schulte first claims that counsel was ineffective for not informing

him about the pending introduction into evidence of certain

audiotapes which allegedly contained hearsay statements about

Schulte's lifestyle and behavior. As the district court correctly found,

the record reflects that Schulte's counsel moved to limit admission of

the tapes to those portions played in the courtroom. Moreover,

Schulte's counsel explained that in his estimation, even if the jury

heard the tapes in their entirety, no incriminating evidence was contained on them. Schulte has therefore failed to demonstrate how he

was prejudiced from counsel's failure to inform him certain audiotapes would be played to the jury.

Schulte next claims that counsel was ineffective in failing to communicate plea offers to him. As counsel reasonably explained, Schulte

was informed about the possibility of plea offers at several times

throughout the trial, but insisted he was innocent, and would take a

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plea only to a misdemeanor resulting in no time served. Further,

Schulte's testimony at trial reflects that he continued to deny any

criminal responsibility with respect to the thefts. Consequently,

Schulte cannot demonstrate that his attorney's conduct with respect

to any plea offer was objectively unreasonable.

Schulte next claims ineffectiveness in counsel's failure to "use"

Schulte's alibi witnesses. As the district court correctly concluded, the

alibi testimony as to the July 13 theft would have been cumulative

and Schulte admitted being present at the other thefts. Accordingly,

Schulte's counsel was not ineffective for failing to call these witnesses.

Finally, Schulte claims counsel was ineffective for failing to subpoena a Roanoke FBI agent present at his booking, and allegedly

attending a social dinner with the trial judge during his trial. Schulte

did not present these claims to the district court, and therefore, absent

plain error, or a miscarriage of justice, we will not consider them. See

Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993). There is no

evidence in the record, save Schulte's conclusory assertions, to support either of these claims.

Accordingly, we deny a certificate of appealability and dismiss this

appeal. 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.

DISMISSED

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