                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-7446


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL LEONARD WOODARD, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:10-cr-00191-BO-1; 5:12-cv-00106-BO)


Submitted:   March 30, 2016                 Decided:   April 7, 2016


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul K. Sun, Jr., Kelly Margolis Dagger, ELLIS & WINTERS LLP,
Raleigh, North Carolina, for Appellant.    Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Barbara D.
Kocher, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Michael Leonard Woodard appeals the district court’s order

denying relief on his 28 U.S.C. § 2255 (2012) motion.                                     Woodard

originally        pleaded        guilty      to     possession          with       intent       to

distribute       marijuana       and    ecstasy,       in   violation         of   21      U.S.C.

§ 841(a) (2012), and possession of a firearm in furtherance of a

drug trafficking offense, in violation of 18 U.S.C. § 924(c)

(2012), pursuant to a plea agreement in which the Government

agreed to move to dismiss the charge of possession of a firearm

by a felon, in violation of 18 U.S.C. § 922(g)(1) (2012).                                      The

agreement included a waiver of Woodard’s right to appeal any

sentence     not       in    excess     of    the      advisory         Guidelines          range

established       at     the     sentencing       hearing,        and    to    collaterally

attack     the     convictions         or    sentence       except       for       claims       of

ineffective assistance of counsel and prosecutorial misconduct

not known to Woodard at the time of his guilty plea.

     The court originally sentenced Woodard below the advisory

Guidelines       range      to   180   months     of    imprisonment          based       on   the

Government’s motion for a departure for Woodard’s substantial

assistance.            Woodard     appealed,        and     counsel       filed       a    brief

pursuant     to     Anders        v.    California,         386     U.S.       738        (1967),

questioning whether the court erred in determining that Woodard

was a career offender.                 We granted the Government’s motion to

dismiss Woodard’s appeal of his sentence based on the appellate

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waiver.       United States v. Woodard, 450 F. App’x 310 (4th Cir.

2011) (No. 11-4373).

       Woodard then filed a 28 U.S.C. § 2255 motion, arguing that

he    was     no   longer     a    career     offender          following       this     court’s

decision in United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc).             The district court granted Woodard’s motion

and resentenced him.              On the Government’s appeal, we vacated the

district court’s order and remanded, concluding that Woodard had

waived his right to collaterally attack his sentence.                                    United

States      v.     Woodard,       523    F.   App’x      262     (4th       Cir.    2013)     (No.

12-7937).          The district court reinstated the original judgment

and appointed new counsel for Woodard.                         Substitute counsel filed

a    supplemental       § 2255          motion,       arguing    that        Woodard’s       trial

counsel rendered ineffective assistance in advising Woodard that

he    could      challenge    his        career       offender    status       on    collateral

review, despite his appellate waiver.                      The district court denied

relief      on     Woodard’s       motion,        but    granted        a    certificate       of

appealability.           28       U.S.C.      § 2253(c)         (2012).            Woodard    now

appeals.         For the reasons that follow, we affirm.

       We review the district court’s legal conclusions de novo

and its factual findings for clear error.                                   United States v.

Fulks, 683 F.3d 512, 516 (4th Cir. 2012).                           Woodard argues that

his    counsel      rendered       a     deficient       performance          by    erroneously

informing Woodard that he could collaterally attack his sentence

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in the face of his enforceable appellate waiver.            Woodard also

argues that he demonstrated that counsel’s error prejudiced him

as, had he been correctly advised, he would have rejected the

Government’s plea offer and instead pleaded guilty to all three

counts without the benefit of a plea agreement.

      We conclude that the court did not err in denying relief on

Woodard’s claim. *   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).      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




      *In reaching this conclusion, we reject the Government’s
argument that Woodard’s numerically second § 2255 motion was an
unauthorized successive motion, as the district court reinstated
the judgment following our remand of the court’s order granting
Woodard’s first § 2255 motion. See In re Goddard, 170 F.3d 435,
436-38 (4th Cir. 1999) (noting that vacating and reinstating a
judgment following successful § 2255 motion to allow defendant
to appeal “resets to zero the counter of collateral attacks
pursued”) (internal quotation marks omitted).

     We also reject the Government’s contention that Woodard’s
claim is barred by his appellate waiver. The waiver explicitly
excepted claims of ineffective assistance not known to Woodard
at the time of his guilty plea.



                                    4
and would have insisted on going to trial.”                           Hill v. Lockhart,

474 U.S. 52, 59 (1985).

       Here,      assuming    that     counsel     erroneously         advised      Woodard

that he could challenge his career offender status on collateral

review,      we   conclude      that    Woodard        has   failed     to    demonstrate

prejudice      for    his    claim     of   ineffective        assistance.          Woodard

explicitly conceded that he would not have proceeded to trial

had    counsel       correctly    advised        him    that    he    could    not      later

challenge his sentence on direct appeal or on collateral review

if the law changed after our decision in Simmons.                         See Hill, 474

U.S. at 59.          Moreover, Woodard has also failed to demonstrate

that he would have pleaded guilty to all three counts rather

than accepting the plea agreement.                      At the time of Woodard’s

guilty plea, he would have been an armed career criminal based

on    his    prior    convictions.           See   18    U.S.C.       § 924(e)      (2012).

Without the benefit of the plea agreement, therefore, Woodard

would have faced a combined statutory mandatory minimum sentence

of     240   months     of    imprisonment,        without       the     benefit        of   a

government        substantial        assistance        motion.         See    18     U.S.C.

§§ 922(g)(1), 924(c), (e).                  Woodard has failed to demonstrate

that    it    would    have     been    rational        to   plead     guilty      to    such

penalties based on the chance that the law would change in the

future.        See    Padilla    v.    Kentucky,       559     U.S.   356,    372    (2010)

(petitioner must demonstrate “that a decision to reject [a] plea

                                             5
bargain would have been rational under the circumstances” to

satisfy the Strickland standard).

     Accordingly,     we   affirm    the   district    court’s      order.      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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