                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4408


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ORLANDO MARVEL COOPER, a/k/a Orlando Marvel Horton,

                  Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00123-NCT-1)


Submitted:    September 1, 2009             Decided:   October 14, 2009


Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Michael F. Joseph,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Orlando   Marvel     Cooper,   a/k/a    Orlando    Marvel   Horton

(“Horton”) 1 , appeals his convictions for possession of ammunition

by a convicted felon (“Count One”) and possession of firearms by

a convicted felon (“Count Two”), both in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2) (2006), and making false statements

to a government agent (Count Three”) in violation of 18 U.S.C.

§ 1001(a)(2) (2006).

            Horton was convicted of Count Three after his first

trial, at which a mistrial was declared as to Counts One and Two

because the jury was unable to reach a verdict as to those

counts.      He was convicted on Counts One and Two following a

second trial.    Horton argues on appeal that his trial counsel at

his first trial was ineffective for withdrawing his motion to

suppress evidence, consisting of firearms and ammunition, that

was located during a search, because he contends that he did not

consent to the search.         Horton also argues that counsel at his

second trial was ineffective because he did not object to the

presentation of evidence regarding his false statements to a

Government    agent   at   his    second   trial,    because    it   was   not




     1
          Appellant has been variously referred to as Cooper and
Horton.



                                      2
relevant       to     the   issues        of    his    possession       of     firearms        and

ammunition.

               We may address on direct appeal a claim that counsel

was ineffective only if the ineffectiveness appears conclusively

on the face of the record.                      United States v. Baldovinos, 434

F.3d 233, 239 (4th Cir. 2006).                       To establish a violation of the

Sixth Amendment due to ineffective assistance of counsel, Horton

must demonstrate that (1) counsel’s representation fell below an

objective       standard       of    reasonableness;            and     (2)       there   is     a

reasonable          probability      that      he     was    prejudiced        by     counsel’s

unprofessional errors.               See Strickland v. Washington, 466 U.S.

668,    688,    694     (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.           A reviewing court must be highly deferential in

scrutinizing         counsel’s       performance         and    must    filter        from     its

analysis the distorting effects of hindsight.                                Id.     If Horton

cannot     show       prejudice,       this         Court    need      not     consider        the

reasonableness         of     his   counsel’s          performance.          Quesinberry        v.

Taylor, 162 F.3d 273, 278 (4th Cir. 1998).

               The     record       does       not     conclusively          establish       that

Horton’s counsel was ineffective with respect to either issue he

raises on appeal.             Two police officers testified at trial that

Horton consented to the search of his person and belongings.

                                                 3
Horton and his girlfriend, Sunni Chambers, testified that they

did    not    voluntarily    consent      to     the    search.        However,    it    is

unlikely that the latter testimony would have been found more

credible at a hearing on the motion to suppress, in light of

extensive evidence presented at trial, in the form of recordings

of    telephone     conversations      between         Horton    and   Chambers     while

Horton was in prison awaiting trial, in which they discussed

their    plans      for    Chambers     to       present   false       affidavits       and

testimony to prosecutors and the court in this case.                          Similarly,

even    assuming     that    Horton’s       counsel      could    have    successfully

excluded      the   evidence   of     his    false      statements       to   Government

agents at his second trial, it does not appear that the evidence

prejudiced him in any way, because his credibility would still

have been seriously undermined by the evidence of his telephone

conversations with Chambers.

               Because ineffectiveness of counsel at either Horton’s

first    or    second     trials   does      not    conclusively       appear     on    the

record, we cannot consider Horton’s claims on direct appeal.

Instead, Horton must pursue any claims of ineffectiveness of

counsel, should he be so advised, in an appropriate proceeding

for post-conviction relief.             Accordingly, we affirm the district

court’s judgment.           We deny Horton’s motion to file a pro se

supplemental brief.          We dispense with oral argument because the

facts    and    legal     contentions     are      adequately     presented       in    the

                                             4
materials   before   the   court   and   argument   would   not   aid   the

decisional process.



                                                                  AFFIRMED




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