                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-7118



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


TIBEL CLARK,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.    Henry M. Herlong, Jr., District
Judge. (CR-01-56; CA-04-747-4-20)


Submitted:   March 18, 2005                 Decided:   April 14, 2005


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


Tibel Clark, Appellant Pro Se. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Tibel Clark appeals from the district court’s orders

denying relief on his motion filed under 28 U.S.C. § 2255 (2000)

and denying his motion for reconsideration. The district court has

granted a certificate of appealability as to Clark’s argument that

he was denied the effective assistance of counsel when counsel

failed to argue that one of Clark’s prior convictions was not for

a crime of violence, and therefore was erroneously counted as a

predicate   offense   to   his   career    offender    enhancement.         U.S.

Sentencing Guidelines Manual § 4B1.1 (2000).

            The statute under which Clark was convicted, entitled

“Felonious Assault,” provides in pertinent part:

     (A) No person shall knowingly do either of the following:

     (1)    Cause serious physical         harm   to   another    or   to
            another’s unborn;

     (2)    Cause or attempt to cause physical harm to another
            or to another’s unborn by means of a deadly weapon
            or dangerous ordnance.

Ohio Rev. Code Ann. § 2903.11(A) (Anderson 1996).           Although Clark

was originally charged with aggravated felonious assault with a

firearm, the offense to which he pled guilty did not include the

aggravated nature of the offense and also deleted the reference to

the firearm.    However, by its terms, § 2903.11 is a crime that

involves the causing of serious physical injury or the attempt to

cause physical injury by use of a deadly weapon.                 Thus Clark’s

prior conviction under this statute constitutes a crime of violence

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under USSG § 4B1.1.       See USSG § 4B1.2, comment. (n.1); United

States v. Pierce, 278 F.3d 282, 288-89 (4th Cir. 2002); see also

USSG § 4B1.2(a)(2) (defining crime of violence to include any

offense “that presents a serious potential risk of physical injury

to another”).

          Because the statute under which Clark was convicted

categorically constitutes a crime of violence, any objection by

counsel to counting this conviction as a crime of violence would

have been futile.   Thus, Clark cannot show that he was prejudiced

by any deficiencies in counsel’s performance.         See Strickland v.

Washington, 466 U.S. 668, 688-89, 694 (1994).             Accordingly, we

affirm the district court’s denial of relief on this claim.

          With regard to the other issues Clark seeks to argue on

appeal, an appeal may not be taken from the final order in a § 2255

proceeding unless a circuit justice or judge issues a certificate

of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of

appealability will not issue absent “a substantial showing of the

denial of a constitutional right.”       28 U.S.C. § 2253(c)(2) (2000).

A prisoner satisfies this standard by demonstrating that reasonable

jurists would find that the district court’s assessment of his

constitutional   claims    is   debatable    or   wrong    and   that   any

dispositive procedural rulings by the district court are also

debatable or wrong.   See Miller-El v. Cockrell, 537 U.S. 322, 336

(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,


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252 F.3d 676, 683 (4th Cir. 2001).    We have independently reviewed

the record and conclude that Clark has not made the requisite

showing.   Accordingly, we decline to expand the certificate of

appealability beyond that granted by the district court, we deny a

certificate of appealability, deny Clark’s motion for appointment

of counsel, and dismiss the appeal in part.    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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