                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


EDWARD LEE BROOKS,                    
             Petitioner-Appellant,
                 v.                             No. 03-6815
RAYMOND SMITH,
             Respondent-Appellee.
                                      
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
               Wallace W. Dixon, Magistrate Judge.
                            (CA-02-604)

                       Argued: May 4, 2004

                      Decided: June 21, 2004

  Before WILKINSON, KING, and GREGORY, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: James Phillip Griffin, Jr., NORTH CAROLINA PRIS-
ONER LEGAL SERVICES, INC., Raleigh, North Carolina, for
Appellant. Clarence Joe DelForge, III, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF NORTH CARO-
LINA, Raleigh, North Carolina, for Appellee. ON BRIEF: Roy Coo-
per, Attorney General of North Carolina, Raleigh, North Carolina, for
Appellee.
2                          BROOKS v. SMITH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   On September 9, 1997, Edward Lee Brooks shot his way into his
estranged wife’s apartment, barricaded himself inside, and then
engaged in a shoot-out with North Carolina police. In September
1998, Brooks pled no contest in Forsyth County Superior Court to
multiple counts of attempted murder, assault with a firearm on a law
enforcement officer, assault with a deadly weapon with intent to kill,
and second-degree burglary. However, Brooks subsequently discov-
ered that Assistant District Attorney Vincent Rabil had extended a
different plea offer in December 1997 to Brooks’ attorney, Roy Hall.
Brooks contends that Hall provided ineffective assistance by not com-
municating the original plea offer to him.

   Brooks presented his claim to the Forsyth County Superior Court,
which directed the State of North Carolina to respond in writing to
Brooks’ allegations. After reviewing the State’s submissions and the
entire state court record, the Superior Court made several factual find-
ings. First, it found that Rabil had formally withdrawn his December
1997 offer shortly after making it, because he had learned of addi-
tional charges against Brooks. Rabil’s withdrawal of the offer was the
reason that Hall had never communicated the offer to Brooks. The
court further found that, even had Brooks attempted to accept the
offer, Rabil would not have consented to entry of the plea. Finally,
according to the court, Brooks actually benefitted from having all of
the charges against him heard at once, rather than in two sessions. For
all of these reasons, the court concluded that Brooks had not shown
any prejudice as a result of Hall’s failure to communicate the Decem-
ber 1997 plea offer. The Superior Court therefore denied Brooks’
motion for appropriate relief, and on appeal the North Carolina Court
of Appeals denied Brooks’ petition. Brooks then filed a federal
habeas petition, and the parties consented to trial before a magistrate
judge. See 28 U.S.C. § 636(c) (2000). The magistrate judge dismissed
                           BROOKS v. SMITH                            3
Brooks’ petition, and we then granted a certificate of appealability to
consider whether Hall’s conduct constituted ineffective assistance of
counsel.

   As the magistrate judge explained, we may not gainsay the state
court’s factual determinations in the absence of "clear and convincing
evidence" to the contrary. 28 U.S.C. § 2254(e)(1). Having reviewed
the record and the parties’ briefs, and having had the benefit of oral
argument, we cannot say that Brooks has overcome his substantial
burden in proving prejudice. The state court had before it ample evi-
dence that the State had withdrawn the plea offer; that the State would
not have agreed to the plea even if Brooks had attempted to accept
the revoked offer; and that Brooks likely received a lighter sentence
under the September 1998 plea agreement than he would have
received under the December 1997 plea offer. In light of this evi-
dence, it was not "objectively unreasonable" for the state court to con-
clude that, even if Hall erred in not communicating to Brooks the
December 1997 offer, Brooks was not prejudiced by Hall’s inaction.
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

  The decision of the magistrate judge to dismiss Brooks’ habeas
petition is therefore

                                                          AFFIRMED.
