                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4968


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN WAYNE HOWELL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:11-cr-00076-RLV-DSC-1)


Submitted:   August 28, 2014                 Decided:   October 1, 2014


Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Frank Alan Abrams, LAW OFFICE OF FRANK ALAN ABRAMS, Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee .


Unpublished opinions are not binding precedent in this circuit.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

                 John    Wayne      Howell      pled    guilty      pursuant      to    a    plea

agreement         to    one    count       of    conspiracy      to    commit      interstate

domestic violence in violation of 18 U.S.C. §§ 371, 2261(a)(2)

(2012).          The court sentenced Howell to the statutory maximum

term of sixty months’ imprisonment.                          Howell appeals, 1 alleging

claims of ineffective assistance of counsel and prosecutorial

misconduct. 2          We affirm.

                 Howell asserts on appeal that counsel was ineffective

for failing to move to dismiss the indictment, which he contends

was defective.            To prove a claim of ineffective assistance of

counsel, a defendant must show (1) “that counsel’s performance

was    deficient,”            and     (2)       “that   the      deficient        performance

prejudiced        the    defense.”           Strickland v.        Washington,          466   U.S.

668,       687    (1984).           With    respect     to    the     first      prong,      “the

defendant must show that counsel’s representation fell below an

objective         standard       of    reasonableness.”               Id.   at    688.         In

addition, “[j]udicial scrutiny of counsel’s performance must be



       1
       The record reflects that Howell filed an untimely pro se
appeal, allegedly because counsel failed to file a timely appeal
on his behalf. The government has stated, however, that it does
not seek to dismiss the appeal as untimely.
       2
       In the plea agreement, Howell agreed to waive appeal of
his conviction and sentence except for claims asserting
ineffective assistance of counsel and prosecutorial misconduct.



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highly deferential.”         Id. at 689.        Under the second prong of the

test in the context of a conviction following a guilty plea, a

defendant can show prejudice only by demonstrating “a reasonable

probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.”                              Hill

v. Lockhart, 474 U.S. 52, 59 (1985).                      Moreover, this court may

address a claim of ineffective assistance on direct appeal only

if   the   lawyer’s       ineffectiveness      conclusively          appears       on    the

record.     United States v. Baldovinos, 434 F.3d 233, 239 (4th

Cir.     2006).      We     have    reviewed        the     record    and    find       that

ineffective assistance of counsel does not conclusively appear

on the record.        Accordingly, we may not review this claim on

direct appeal.

            Next,      Howell        alleges         prosecutorial          misconduct,

asserting that the government improperly indicted him when there

was no evidence that he was guilty of conspiracy and because he

was, at worst, a witness to the abuse inflicted on the victim.

To prevail on a due process claim of prosecutorial misconduct,

the defendant must show both misconduct and resulting prejudice.

See United States v. Caro, 597 F.3d 608, 624 (4th Cir. 2010)

(“In   assessing     alleged       prosecutorial          misconduct,      [this    court]

ask[s]     whether    the    misconduct        so     infected       the    trial       with

unfairness as to make the resulting conviction a denial of due

process.”    (internal       quotation     marks          omitted)).        Our     review

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discloses that Howell’s claim is meritless, as he fails to show

either misconduct or prejudice.

           We accordingly affirm the district court’s judgment.

We   dispense   with   oral   argument   because    the   facts   and   legal

contentions     are   adequately   presented   in   the   materials     before

this court and argument would not aid the decisional process.



                                                                   AFFIRMED




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