UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6987

EMMANUEL UMEGBOLU,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

(CR-92-371, CA-97-1257-L)

Submitted: March 10, 1998

Decided: April 30, 1998

Before WILKINS and HAMILTON, Circuit Judges, and

HALL, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Emmanuel Umegbolu, Appellant Pro Se. Thomas Michael DiBiagio,

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,

Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Emmanuel Umegbolu appeals from a district court order denying

his motion under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997). We

deny a certificate of appealability and dismiss.

In December 1995, Umegbolu pled guilty to conspiracy to distribute heroin and was sentenced to 140 months imprisonment.1 On April

23, 1997, Umegbolu filed a § 2255 motion alleging that the government had failed to disclose exculpatory video and audio tapes and

making a general claim of ineffective assistance. The government

responded that all tapes were turned over to defense counsel before

trial and that Umegbolu's attorney had performed competently. The

district court denied the motion on June 30, 1997. Umegbolu appealed

this order on July 15, 1997.

Umegbolu then moved to dismiss his appeal so that the district

court could consider an Addendum to his § 2255 motion, which he

claimed had been filed shortly before the district court denied the

motion. We construed the motion to dismiss as a motion for limited

remand and remanded the case to allow the district court to consider

the Addendum. In the Addendum, Umegbolu made three additional

ineffective assistance claims: that his attorney failed to note an

appeal, to contest the amount of heroin used to compute his sentence,

and to object to the role adjustment.2 

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1 His guilty plea came two years after several members of his drug

organization were convicted of murder for hire and related offenses.

Umegbolu had ordered the murder of a distributor in Baltimore who

refused to pay for heroin he had received. Umegbolu's prosecution was

delayed because he was convicted of a heroin offense in Canada and

served over two years in prison there before being extradited to the

United States.

2 The record reveals that, in his plea agreement, Umegbolu waived the

right to appeal his sentence and agreed to the drug amount for which he

was responsible, to an aggravated role adjustment, and to the guideline

range of 121-151 months used at sentencing.

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After the case was remanded, the district court requested a copy of

the Addendum from the court of appeals. The district court then

reviewed the Addendum and determined that it was"in essence a second 2255 motion." The court found that Umegbolu had offered no

justification for failing to raise all his claims of ineffective assistance

in his first § 2255 motion. Finding that the second § 2255 motion was

an abuse of the writ, the district court dismissed it with prejudice. In

a footnote, the court also suggested that the second§ 2255 motion

was time-barred. See 28 U.S.C.A. § 2255.

We first find that Umegbolu's claim that the government failed to

disclose exculpatory evidence was precluded by his guilty plea. A

defendant who voluntarily pleads guilty to the charge against him

cannot later attack his conviction by claiming that he was deprived of

constitutional rights before he entered the guilty plea. See Tollett v.

Henderson, 411 U.S. 258, 267 (1973). He may only attack the voluntariness of his plea on the ground that he received ineffective assistance of counsel. Id. In any case, Umegbolu did not claim that the

government failed to disclose all the tapes to his lawyer, only that he

did not personally have a chance to review the tapes.

Umegbolu's second issue is without merit. To succeed in an ineffective assistance claim in the context of a guilty plea, a defendant

must establish that his attorney's performance fell below objective

standards of reasonableness and that there is a reasonable probability

that, but for counsel's unprofessional errors, he would not have pled

guilty. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). Umegbolu

made only a general claim of ineffectiveness which did not explain

in what way his lawyer's performance was deficient. Umegbolu thus

failed to meet his burden under Hill.

In his motion to dismiss his appeal, Umegbolu claimed that he had

filed the Addendum just before the district court ruled on his § 2255

motion, and the Addendum was not considered because the court

ruled so quickly. It is now apparent, however, that the district court

did not receive a copy of the Addendum until after this court

remanded the case. Under these circumstances, the district court properly treated the Addendum as a successive § 2255 motion submitted

without authorization under 28 U.S.C.A. § 2244 (West 1994 & Supp.

1997). We need not consider whether the second § 2255 motion was

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also time-barred, as the district court suggested. Umegbolu remains

free to seek authorization from this court to file a successive § 2255

motion, because the district court was not free to rule on the merits

of a second § 2255 motion without authorization from this court.

We therefore deny a certificate of appealability and dismiss the

appeal from the district court's order denying Umegbolu's first

§ 2255 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.

DISMISSED

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