                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-7731



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


SPENCER T. MYERS,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (CR-00-62; CA-03-2220-3)


Submitted:   September 9, 2008          Decided:   September 19, 2008


Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Spencer T. Myers, Appellant Pro Se.        Richard Gregory McVey,
Assistant United States Attorney, Huntington, West Virginia; Hunter
Paul Smith, Jr., Assistant United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                  Spencer T. Myers appeals from the district court’s denial

of his 28 U.S.C. § 2255 (2000) motion for relief from judgment.

The district court denied Myers’ § 2255 motion, which raised

several claims, but awarded a certificate of appealability on one

issue:        whether          the   public   safety    exception    to     the    warrant

requirement authorized the pre-Miranda* questioning of Myers about

the location of a firearm used in a murder.                      We deny relief and

affirm as to this issue, and dismiss Myers’ appeal as to all other

claims.

                  In an appeal from the denial of a § 2255 motion, we

review de novo the district court’s legal conclusions.                              United

States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007).                          In order

to succeed on a claim of ineffective assistance, a defendant must

show       that    his   counsel’s      performance      fell   below      an    objective

standard of reasonableness and that counsel’s deficient performance

was prejudicial.               Strickland v. Washington, 466 U.S. 668, 687

(1984).       Under the first prong of Strickland, there is a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.                    Id. at 689.        To satisfy the

second      prong,       the    defendant     must   show   there    is    a    reasonable

probability that his attorney’s errors altered the outcome of the

proceeding.          Id. at 694.


       *
        Miranda v. Arizona, 384 U.S. 436 (1966).

                                               2
              Having reviewed the record and the district court’s

decision, we conclude that Myers cannot establish that trial

counsel was ineffective for failing to seek suppression of the

seized   evidence      on   the     basis   of   the   alleged     Fifth    Amendment

violation.      Thus, we affirm the portion of the district court’s

order rejecting this claim for the reasons stated by the district

court. United States v. Myers, Nos. 3:00-cr-00062; 3:03-cv-02220-3

(S.D.    W.   Va.   Aug.      11,    2005).       We   deny    a   certificate     of

appealability and dismiss the appeal as to all other issues raised

in Myers’ § 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.

                                                                 AFFIRMED IN PART;
                                                                 DISMISSED IN PART




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