                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 02-6277
FLEMING MACON PLEASANTS,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                James C. Fox, Senior District Judge.
                      (CR-96-21, CA-98-917)

                       Argued: April 1, 2003

                      Decided: July 24, 2003

        Before MICHAEL and KING, Circuit Judges, and
     Terry L. WOOTEN, United States District Judge for the
        District of South Carolina, sitting by designation.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Joshua D. Rogaczewski, Student Counsel, Appellate Liti-
gation Clinic, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: Steven H. Goldblatt, Director, Abigail V. Carter, Supervis-
ing Attorney, Martha R. Mora, Student Counsel, Appellate Litigation
2                    UNITED STATES v. PLEASANTS
Clinic, GEORGETOWN UNIVERSITY LAW CENTER, Washing-
ton, D.C., for Appellant. Frank D. Whitney, United States Attorney,
Raleigh, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                              OPINION

PER CURIAM:

   Fleming Macon Pleasants seeks a Certificate of Appealability
(COA) to challenge the district court’s order denying his motion for
federal habeas relief. Specifically, Pleasants argues he was denied his
Sixth Amendment right to effective assistance of counsel and requests
that this Court set aside his conviction and remand for a new trial. As
explained below, we grant Pleasants’ COA but determine that the
District Court committed no reversible error. Accordingly, we affirm
the District Court’s dismissal.

                                   I.

   On July 9, 1996, following a jury trial in the United States District
Court for the Eastern District of North Carolina, Pleasants was con-
victed of conspiracy to possess with intent to distribute cocaine and
marijuana, in violation of 21 U.S.C. § 846 (2000). On October 7,
1996, the District Court sentenced Pleasants to life in prison. Pleas-
ants filed a timely notice of appeal. The Fourth Circuit Court of
Appeals affirmed the judgment of the District Court in an unpublished
opinion on December 8, 1997.1

  On December 4, 1998, Pleasants filed a petition for habeas corpus
under 28 U.S.C. § 2255 in the District Court, claiming that he
    1
    United States v. Pleasants, 131 F.3d 138 (4th Cir. 1997) (Unpub-
lished).
                      UNITED STATES v. PLEASANTS                       3
received ineffective assistance of counsel. In particular, Pleasants
argued his trial counsel was ineffective by failing to object at trial to
the judge’s absence during closing argument and in failing to raise
this issue on direct appeal. The government filed a Motion to Dismiss
or for Summary Judgment on February 26, 1999. The District Court
granted the government’s summary judgment motion on November
27, 2001, denying Pleasants’ request for habeas relief. Pleasants
timely filed a motion for a COA pursuant to 28 U.S.C. § 2253(c) and
a notice of appeal from the District Court’s order. On February 19,
2002, the District Court denied Pleasants a COA.

                                   II.

   Pleasants requests that this Court issue a COA under 28 U.S.C.
§ 2253(c). An appeal may not be taken from the final order in a
§ 2255 proceeding unless a circuit justice or judge issues a COA. 28
U.S.C. § 2253(c)(1)(2000). A COA will not issue for claims
addressed by a district court 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 could debate whether the petition should have been resolved in
a different manner or that the issues presented were adequate to
deserve encouragement to proceed further." Miller-El v. Cockrell, 123
S.Ct. 1029, 1039 (2003) (internal quotations omitted). Further, a
claim can be debatable even though "every jurist of reason might
agree, after the COA has been granted and the case has received full
consideration, that petitioner will not prevail." Id. at 1040. After
reviewing the record, we conclude that reasonable jurists could debate
Pleasants’ Sixth Amendment claim. Therefore, we grant Pleasants a
COA and address his claims on the merits.

                                  III.

   To prevail on an ineffective assistance of counsel claim, a habeas
corpus petitioner must satisfy the two-pronged test of Strickland v.
Washington, 466 U.S. 668, 687 (1984). First, he must show "that
counsel’s performance was deficient," meaning that "counsel made
errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment." Id. Second, he
4                    UNITED STATES v. PLEASANTS
must show "that the deficient performance prejudiced the defense."
Id.

   Under the Strickland analysis, an attorney’s performance is to be
measured by "reasonableness under prevailing professional norms."
Id. at 688. In applying the professional norms standard, the courts’
scrutiny of the performance of counsel must be "highly deferential,"
and courts "must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance." Id.
at 689. Additionally, counsel’s perspective at the time of the represen-
tation must be considered. Id. If a defendant is able to establish defi-
cient performance, the prejudice prong requires a showing that "there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different." Id. at
694.

  Ineffective assistance of counsel claims present mixed questions of
law and fact and are reviewed de novo. United States v. DeTemple,
162 F.3d 279, 289 (4th Cir. 1998).

                                  IV.

   At Pleasants’ trial, the government presented evidence supporting
the charges alleged in the indictment. Following the presentation of
the government’s case, Pleasants rested without offering any addi-
tional evidence. Prior to closing arguments by either the government
or defense counsel, the judge instructed the jury as follows:

    Finally, let me say to you that during the course of the argu-
    ments, I may not be here at the bench. I may go into my
    chambers and work on my charge, that is, instructions, or I
    may work on or just tend to other matters. But if I leave the
    bench, I will be in earshot, and if one of the lawyers should
    object to something that the other one says, they know to
    stop until I can come back into the courtroom and rule on
    whatever the objections might be.

(Suppl. J.A. at 497) According to the transcript, the Court then
referred to the assistant United States attorney for her closing argu-
                       UNITED STATES v. PLEASANTS                          5
ment. At some point after recognizing government’s counsel, the
judge left the courtroom. At the conclusion of her closing argument,
Pleasants’ counsel began his closing argument. At the conclusion of
Pleasants’ closing argument, the transcript reflects that the Court cal-
led a fifteen minute recess. After the recess, the Court introduced
counsel for Pleasants’ co-defendant. At the conclusion of his argu-
ment, the Court again recognized the assistant United States attorney
for her rebuttal argument.2 The record on appeal indicates that no
objections were made by any party either prior to, during, or after
closing arguments were delivered.

   Pleasants argues that he was not afforded effective assistance
because his counsel failed to object to the trial judge’s absence during
closing arguments. To prevail on an ineffective assistance of counsel
claim, petitioner must first show that "counsel made errors so serious
that counsel was not functioning as the counsel guaranteed the defen-
dant by the Sixth Amendment." Strickland, 466 U.S. at 687. In sup-
port of his claim, Pleasants primarily argues that the trial judge’s
absence during a critical stage of the trial may have permitted the jury
to infer partiality against Pleasants that may have affected the jury’s
verdict. We find this argument unpersuasive. Pleasants’ counsel was
aware that it was common practice for this trial judge to leave the
bench during closing arguments. Counsel determined that an objec-
tion would likely be futile and could potentially damage their client.
Therefore, counsel made the tactical decision not to object. We cannot
conclude that counsel made an error so serious that he was not func-
tioning as the counsel required by the Sixth Amendment.

   This Court addressed a similar occurrence in United States v. Love,
134 F.3d 595 (4th Cir. 1998). In Love, the appellant argued that under
Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995), the trial judge’s absence
from the courtroom constituted structural error and was, therefore,
reversible per se. The Love Court distinguished Riley3 and held that
  2
    Pleasants submitted affidavits indicating that the trial judge left the
courtroom after introducing the assistant United States attorney and did
not return until the government was close to concluding its rebuttal argu-
ment.
  3
    In Riley, a case factually distinguishable from this one, the trial judge
was absent and could not be located when the jury requested that they
6                      UNITED STATES v. PLEASANTS
the trial judge’s absence from the courtroom was not structural error
because there was not a complete abdication of judicial control over
the process. In Love, as in this case, the judge instructed the jury that
he would be in his chambers and available to respond to any objec-
tions. Therefore, the Love Court found that the judge’s absence from
the courtroom during closing arguments was not structural error when
there was not a complete abdication of control over the proceedings.
Further, while the Love Court noted that it did "not condone the
absence of the trial judge from any phase of the trial proceeding,"
Love, 134 F.3d at 604, it concluded that any error was harmless.

   Pleasants attempts to distinguish the Love decision on the grounds
that the judge in that case was intermittently absent from the court-
room during argument, whereas in this case, the judge was absent
during his counsel’s entire argument. Pleasants contends that because
the judge was absent for his entire closing argument, the judge may
have given the impression to the jury that the defendant’s case had
less merit than or lacked the import of the government’s case. We
find this argument unpersuasive. This Court cannot conclude that
there is a factual distinction between the Love case and this case suffi-
cient to warrant relief.

   Pleasants also argues that his case is less like Love and more like
United States v. Mortimer4 where the Third Circuit held that under the
facts of that case, a trial judge’s absence from the bench during clos-
ing arguments was structural error. In Mortimer, the defense counsel
had just begun her closing argument when the prosecutor made an
objection only to discover that the judge was no longer present. The
judge did not give any notice to the parties or the jury that he was
about to depart. The judge returned to the bench in time to thank the
defense counsel and call on the prosecutor for her rebuttal, but he

be allowed to re-hear certain parts of the testimony given at trial. The
judge’s law clerk presided over the proceedings and made the decision
to allow testimony to be read back to the jury and decided what portions
of that testimony should be presented. The Ninth Circuit Court of
Appeals held that there was a complete abdication of judicial control
over the process that resulted in a structural constitutional error requiring
reversal of the defendant’s conviction.
   4
     United States v. Mortimer, 161 F.3d 240 (3d Cir. 1998).
                       UNITED STATES v. PLEASANTS                         7
gave no explanation for his departure. The Third Circuit held that the
judge’s absence from the courtroom in that case was structural error
and remanded for a new trial.

   In the Mortimer opinion, the Court cited Love with approval for the
proposition that "structure normally stands if the parties consent to
excuse the presence of a judge." Mortimer, 161 F.3d at 241. In Pleas-
ants’ case, as in Love, the judge instructed the jury that he may not
remain at the bench during closing arguments, but he would be avail-
able to rule on any objections. In Mortimer, the judge left without
notice to the parties. He was not present to rule on an objection made
by counsel for the government. Further, in Pleasants’ case, like Love,
the parties did not object to the judge’s instruction to the jury or to
his leaving the bench. The judge’s jury instruction and the opportu-
nity given to the parties to object in the case at bar is more consistent
with Love and distinguishes it from Mortimer. For that reason, we
conclude that Pleasants’ case is more like Love where the court deter-
mined the judge’s absence from the courtroom was not structural
error.

   While we do not conclude that counsel was deficient in failing to
object to the judge’s absence, assuming counsel was deficient, Pleas-
ants is unable to show that the deficient performance prejudiced his
defense. Pleasants has "not pointed to any specific comments made
in the district judge’s absence that affected the trial’s fairness," nor
has he specified any part of the government’s closing argument that
was properly subject to objection.5 Love, 134 F.3d at 605. Pleasants
has not made a sufficient showing that but for his counsel’s alleged
unprofessional errors, the result of the proceedings would have been
different. Further, Pleasants has failed to put forth sufficient evidence
to show that appellate counsel’s failure to raise this issue on appeal
was so deficient that it fell below the standard set forth in Strickland.
Therefore, the district court properly denied Pleasants’ § 2255
motion.
  5
   Pleasants also raised a claim of juror inattentiveness. Prior to exiting,
the trial judge admonished the jurors to pay attention during closing
arguments. Pleasants has failed to put forth sufficient evidence to show
that the judge’s absence prejudiced the defendant on this claim.
8                    UNITED STATES v. PLEASANTS
                                  V.

  In conclusion, we grant a COA as to Pleasants’ claim that his Sixth
Amendment right to effective counsel was violated. However, we
conclude that the District Court did not commit reversible error in dis-
missing Pleasants’ § 2255 claim. Accordingly, we affirm.

                                                           AFFIRMED
