                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4191



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


CHARLES E. FORTNER,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (CR-03-110)


Submitted:   August 30, 2004                 Decided:   December 8, 2004


Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David D. Perry, LAW OFFICE OF DAVID D. PERRY, Huntington, West
Virginia, for Appellant. Charles T. Miller, Acting United States
Attorney, Stephanie L. Haines, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Charles    Edward    Fortner       was   convicted       of    aiding    and

abetting   possession    with    intent       to    distribute         marijuana,    in

violation of 21 U.S.C. §§ 2, 841(a)(1) (2000).                  On appeal, Fortner

argues that his trial counsel did not provide effective assistance

and therefore his conviction should be reversed. Finding no error,

we affirm the judgment.

           On September 21, 2000, Charles Fortner was driving a van

on a route in West Virginia.                Law enforcement officers were

conducting    surveillance      and    watching      for     the    van.      A     law

enforcement   officer    had    received       a    tip    from    a     confidential

informant that a van would be taking a specified route and would be

carrying   drugs    intended    for    distribution.            According     to    the

appellate briefs, the tip was provided by a confidential informant

who was deceased at the time of trial.              The court determined that

the   information    relayed    to    the   officers       by     the    confidential

informant could not be introduced at trial.

           Officers    picked    up    Fortner’s      van,      followed     it,    and

stopped it for the traffic violation of speeding, forty-five mph in

a twenty-five mph zone. The officer confirmed that Fortner was the

registered owner of the van.          He had a passenger, Caldwell Skaggs,

traveling with him.      When the officers approached the van they

detected a very strong air freshener smell.                An officer testified

that air freshener is a common masking agent used to disguise


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strong smells.    A canine unit was brought to the scene and alerted

on the passenger-side sliding door of the vehicle. Fortner did not

consent to a search of the vehicle, and a search warrant was

obtained.    A search of the vehicle revealed a loaded Derringer

pistol within reach behind an access panel and seventy-four pounds

of marijuana split between two bags in the rear of the vehicle.             A

small amount of cocaine was also found on the defendant at the time

of his arrest.

            A jury found Fortner guilty as charged, but found the

passenger,   Skaggs,   not    guilty    of   the    same   charges.   Fortner

obtained new counsel after trial and filed post-trial motions

challenging his conviction on several bases, including ineffective

assistance of counsel.       The district court denied the motion and,

in ruling on the ineffective assistance of counsel claim, stated

that it was “clearly not the case” that counsel’s representation

fell below an objective standard of reasonableness, and that, even

if counsel had taken all steps identified in the motion, the result

would not have been different.         Fortner was subsequently sentenced

to a term of imprisonment of forty-one months, a three-year term of

supervised release, a $500 fine, and a $100 special assessment fee.

            Claims of ineffective assistance of counsel are generally

not cognizable on direct appeal. To allow for adequate development

of a record, a defendant must bring his claim in a 28 U.S.C. § 2255

(2000)   motion    unless     the      record      conclusively   establishes


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ineffective assistance. United States v. Richardson, 195 F.3d 192,

198 (4th Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th

Cir. 1997).

            To prevail on a claim of ineffective assistance of

counsel, Fortner must show both that counsel’s performance was

inadequate and that the deficient performance was prejudicial. See

Strickland v. Washington, 466 U.S. 668, 687-88 (1984).                 Under the

first prong of Strickland, a movant must show that counsel’s

performance fell below an objective standard of reasonableness

under prevailing professional norms.           Id. at 688.       In evaluating

counsel’s performance, the court indulges a strong presumption that

counsel’s   conduct   falls    within    the   wide      range   of   reasonable

professional assistance. Id. at 689. Further, 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.

            Fortner argues that counsel failed to fully investigate

the   circumstances   surrounding       probable    cause    for      the   search

warrant.    In particular, Fortner points to the dismissal of the

speeding ticket, that the confidential informant was deceased and

therefore   his   indicia     of   reliability     was    untested,     and   the

possibility of ascertaining scientific studies on the reliability

of the police canine unit used in the search.             Fortner also argues

that it was ineffective assistance to fail to file a suppression


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motion based on the Government’s potential use of hearsay evidence

under Fed. R. Evid. 804 in relation to proving the reliability of

the deceased confidential informant.       Fortner concedes that this

issue was raised and decided by the district court on the day of

trial, but argues that the issue required additional preparation

and attention and it was ineffective assistance for counsel to fail

to address the issue earlier.          Finally, Fortner asserts that

counsel failed to call any witnesses on his behalf and failed to

cross-examine any of the four Government witnesses.

            We find that Fortner has not proven that counsel’s

performance fell below an objective standard of reasonableness or

that, but for counsel’s performance, the result would have been

different. See Strickland, 466 U.S. at 687-88. First, Fortner did

not include full transcripts, or even complete excerpts, in the

joint appendix to support his assertions.

            From the evidence before us it is difficult to determine

to what degree defense counsel challenged the validity of the

information supporting the search warrant and traffic stop.            The

district court docket sheet reflects that counsel did not file a

pre-trial   motion;   however,   the   transcript   selections   and   the

appellate briefs indicate that, before trial, the district court

held a hearing on the admissibility of evidence relating to the

confidential informant.    It is also impossible to determine what,

if any, action defense counsel took or should have taken, during


                                 - 5 -
the trial because there are no relevant transcripts included in the

joint appendix supporting Fortner’s assertions.

          Finally,   it   is   unlikely   that,   even   if   counsel   had

challenged the stop and the admissibility of the evidence found in

the van and cross-examined the Government witnesses, the result

would have been different, nor was it error by the district court

to not hold an evidentiary hearing on the matter.         Fortner states

that counsel should have called witnesses on his behalf, but does

not identify the potential witnesses or indicate their relevance.

The evidence found in the van pursuant to the search warrant based

upon probable cause and that was introduced at trial is persuasive

evidence that Fortner possessed marijuana with the intent to

distribute it, and it is unlikely that the result would have been

different if counsel had engaged in the defense of the case that

Fortner suggested.

          We therefore conclude that the record on appeal does not

conclusively establish ineffective assistance of counsel and affirm

the judgment. 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




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