                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-4410


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

COLLIN HAWKINS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:10-cr-00004-JPJ-PMS-1)


Submitted:   June 20, 2013                  Decided:   June 28, 2013


Before WYNN and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Collin Hawkins, Appellant Pro Se. Debbie H. Stevens, OFFICE OF
THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Collin        Hawkins,         a       prisoner        at      United       States

Penitentiary      Lee     (“USP       Lee”),       appeals       the     district      court’s

judgment    sentencing          him       to   188     months’          imprisonment         for

willfully    conniving         and    assisting       in     a    riot    at    USP    Lee    in

violation    of    18    U.S.C.       § 1792       (2006),       forcibly      resisting      an

employee of the Bureau of Prisons in violation of 18 U.S.C.

§ 111(a)(1),      possession         of    a   prohibited         object       designed      and

intended    to    be    used    as    a    weapon     in     violation      of    18    U.S.C.

§ 1791(1)(2), (d)(1)(B) (2006), and felony contempt of a court

order in violation of 18 U.S.C. § 401(3) (2006).                               Hawkins pled

guilty to the felony contempt charge and was convicted of the

other charges after a bench trial.                     Hawkins was acquitted on a

second charge of possession of a prohibited object.

            On appeal, Hawkins argues that his due process rights

were violated when the Government destroyed video tape evidence

and the weapon that he was accused of possessing, that his due

process    rights       were    violated       when     the       Government      knowingly

allowed its witnesses to make false statements, that his trial

counsel was ineffective, that the district court erred when it

denied his Fed. R. Crim. P. 29 motion for acquittal, that the

district court erred when it denied his Fed. R. Crim. P. 33

motion for a new trial, and that his guilty plea was not knowing

and voluntary.         We affirm.

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            First, Hawkins contends that the Government violated

his due process rights by destroying exculpatory evidence.                                The

duty to preserve evidence arises when the evidence “possess[es]

an exculpatory value that was apparent before the evidence was

destroyed, and [is] of such a nature that the defendant would be

unable     to    obtain      comparable         evidence       by    other     reasonably

available means.”          California v. Trombetta, 467 U.S. 479, 488-89

(1984).         However,     the   failure       to   preserve         even   potentially

exculpatory      evidence     does    not      automatically         constitute      a    due

process violation.           It is only when the “defendant can show bad

faith on the part of the police[] [that] failure to preserve

potentially       useful     evidence”      amounts       to     the    denial      of    due

process.        Arizona v. Youngblood, 488 U.S. 51, 58 (1988).                            Bad

faith “requires that the officer have intentionally withheld the

evidence for the purpose of depriving the plaintiff of the use

of that evidence during his criminal trial.”                           Jean v. Collins,

221 F.3d 656, 663 (4th Cir. 2000).

            Hawkins argues that the Government acted in bad faith

when it reviewed video footage of the incident and chose to

preserve    only      that    footage     it     deemed     to      have    investigatory

value.     We conclude that Hawkins has not met the high bar for a

failure to preserve evidence claim.                   Multiple witnesses at trial

testified to the events in question, relevant video footage was

preserved       and   presented      at   trial,      and      there       simply   was    no

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indication       that      the    video     that      was       destroyed         included       any

footage that was exculpatory or otherwise inconsistent with the

video    that        was    retained.           Hawkins         also        argues    that       the

Government      failed      to    preserve      evidence         of     the      weapon    he    was

accused of possessing.               A photograph of the weapon was admitted

into evidence, however, and a correctional officer testified at

trial to the weapon’s nature.                       There is no basis to conclude,

then,    that    production         of    the     actual        weapon      would     have      been

clearly exculpatory.              Therefore, we conclude that Hawkins has

failed to establish a claim for failure to preserve evidence.

               Next, Hawkins argues that his due process rights were

violated when the Government knowingly allowed its witnesses to

make    false     statements.             Due     process        is    implicated         if     the

prosecution       presented         testimony        it    knew       to    be    false.        See

Giglio v. United States, 405 U.S. 150, 153 (1972).                                   The knowing

use of false evidence or perjured testimony constitutes a due

process violation when there is “any reasonable likelihood that

the    false    testimony        could     have      affected         the    judgment      of    the

jury.”         United      States    v.     Agurs,        427    U.S.       97,    103    (1976).

Defendants bear the burden of showing the testimony was actually

perjured       and    the    prosecution            used    it     with       contemporaneous

knowledge it was false.                  United States v. Roane, 378 F.3d 382,

401 (4th Cir. 2004).              We note that Hawkins was tried before a

district       judge,      drastically      reducing        the       likelihood         that    the

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fact     finder    was      misled.              Further,      the     purportedly             false

statements     that       Hawkins          alleges     are     no    more        than    typical

testimonial inconsistencies, some of which were addressed before

the fact finder at trial and were resolved against him.

             Next,      Hawkins       contends        that     his    trial       counsel       was

ineffective.         Claims of ineffective assistance of counsel are

generally not cognizable on direct review.                                United States v.

Benton, 523 F.3d 424, 435 (4th Cir. 2008).                                 However, we can

entertain     such       claims       on    direct      appeal       if    it     conclusively

appears from the record that defense counsel did not provide

effective representation.                  United States v. Richardson, 195 F.3d

192, 198 (4th Cir. 1999).                   In order to succeed on a claim of

ineffective assistance of trial counsel, a defendant must show

that counsel’s performance fell below an objective standard of

reasonableness           and        that        the    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         performance        fell       within       the    wide

range of reasonable professional assistance.                              Id. at 689.            The

reviewing court must evaluate the reasonableness of counsel’s

performance within the context of the circumstances at the time

of     the   alleged       errors,         rather      than     with       the    benefit        of

hindsight.           Id.       at     690.            “Conclusory          allegations          are

insufficient       to       raise          cognizable         claims        of     ineffective

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assistance of counsel.”             United States v. Demik, 489 F.3d 644,

646   (5th   Cir.     2007)     (alterations             omitted);      United    States       v.

Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).

             To    satisfy       the     second          prong     of    Strickland,       the

defendant     “must      show    that    there       is    a     reasonable      probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.                       A reasonable probability

is    a   probability      sufficient      to       undermine        confidence      in    the

outcome.”     Strickland, 466 U.S. at 694.                     The defendant bears the

burden of establishing prejudice and, if the defendant cannot

meet his burden, the performance prong need not be considered.

Id.   at   697.       Upon      review    of       the    record,       we    conclude    that

Hawkins’ counsel effectively presented his preferred defense at

trial and challenged Government witnesses on key points in his

defense.      Therefore, because the record does not conclusively

show that counsel was ineffective, we decline to consider this

issue on direct appeal.

             Hawkins next claims that the district court erred when

it denied his Fed. R. Crim. P. 29 motion for a judgment of

acquittal     as    to   his     willfully         conniving       and       assisting    in   a

prison riot charge based on insufficiency of the evidence.                                     We

review the denial of a Rule 29 motion de novo.                                   See United

States v. Cloud, 680 F.3d 396, 403 (4th Cir.), cert. denied, 133

S. Ct. 218 (2012).           When a Rule 29 motion was based on a claim

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of   insufficient          evidence,         the    verdict           must      be     sustained      “if

there is substantial evidence, taking the view most favorable to

the Government, to support it.”                        United States v. Whitfield, 695

F.3d   288,       310    (4th    Cir.    2012)         (internal         quotation           marks    and

citations         omitted),      cert.       denied,            133    S.       Ct.    1461    (2013).

Substantial evidence is “evidence that a reasonable finder of

fact   could          accept    as   adequate          and       sufficient            to    support    a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

United    States         v.    King,    628        F.3d     693,       700       (4th       Cir.   2011)

(internal quotation marks omitted).

               Upon       review       of     the         record,           we        conclude       that

substantial evidence existed to show that Hawkins participated

in a prison riot.              The district court credited the Government’s

witnesses         who    testified      that        Hawkins           had       been    involved       in

fighting other inmates, that he resisted attempts to restrain

him, that he sought to return to the melee, and that once the

fighting was concluded he made verbal signals to other inmates,

indicating        his     affiliation         with       one     of     the      groups       that    had

engaged      in    the    riot.         We    find        this        evidence         sufficient      to

support Hawkins’ conviction.

               Hawkins also argues that the district court erred when

it denied his Fed. R. Crim. P. 33 motion for a new trial based

on   newly     discovered        evidence.             We       review      a    district      court’s

denial    of      a     Rule    33   motion        for      a    new     trial         for    abuse    of

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discretion.        United States v. Smith, 451 F.3d 209, 216 (4th Cir.

2006).        To   receive    a    new    trial       based       on   newly      discovered

evidence, a defendant must show that: (1) the evidence is newly

discovered; (2) he has been diligent in uncovering it; (3) the

evidence      is    not   merely       cumulative         or   impeaching;           (4)    the

evidence      is   material       to   the    issues        involved;       and      (5)    the

evidence would probably produce an acquittal.                          United States v.

Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).                             The trial court

“should exercise its discretion to award a new trial sparingly

. . .”        Smith, 451 F.3d at 216-17 (internal quotation marks

omitted).

              Hawkins     contends       that       he    discovered        a    dozen       new

witnesses willing to testify to his version of events.                               However,

we conclude that the district court did not err when it denied

his motion.         Based on Hawkins’ representations, none of these

witnesses would testify to new evidence.                       Rather, their purpose

would simply have been to bolster the version of events that

Hawkins    had     already     presented         at      trial.        Therefore,          their

testimony would be merely cumulative.

              Lastly, Hawkins contends that his guilty plea to the

felony contempt charge was not knowing and voluntary because he

had been misadvised as to the maximum sentence for violation of

18   U.S.C.    § 401(3)      (2006).         That     statute      reads,       in   relevant

part: “A court of the United States shall have power to punish

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by   fine    or   imprisonment,     or   both,     at   its   discretion,    such

contempt of its authority as . . . Disobedience or resistance to

its lawful writ, process, order, rule, decree, or command.”                   18

U.S.C. § 401(3) (2006).            Hawkins was informed at the Fed. R.

Crim.   P.   11   hearing   that    there    was   no   maximum   sentence    for

violation of § 401(3).          This is an accurate statement of the

maximum sentence.        See Richmond Black Police Officer’s Ass’n v.

City of Richmond, 548 F.2d 123, 128 (4th Cir. 1977) (“18 U.S.C.

§ 401(3) does not contain statutory maximums regarding penalties

which may be imposed.”).           Therefore, we conclude that Hawkins’

guilty plea was knowing, voluntary, and effective.

             Accordingly, we affirm the district court’s judgment.

We   dispense     with   oral   argument     because    the   facts   and   legal

contentions are adequately presented in the material before this

court and argument will not aid the decisional process.

                                                                       AFFIRMED




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