                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-7645



UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.


JAMES GORMLEY,

                 Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.   Robert C. Chambers,
District Judge. (3:98-cr-00152-2; 3:03-cv-00340)


Submitted:   February 14, 2008            Decided:   February 29, 2008


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Gormley, Appellant Pro Se. Philip Henry Wright, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              James Gormley appeals from the district court’s entry of

judgment on his 28 U.S.C. § 2255 (2000) motion for relief from

judgment.        The   district    court    awarded   a   certificate     of

appealability (“COA”) to Gormley on his contention that trial

counsel rendered constitutionally ineffective assistance of counsel

when he failed to persuade the trial court to accept his “theory of

the defense” instruction and failed to preserve the issue for

appeal.   We deny relief on this issue and affirm.

              In an appeal from the denial of a § 2255 motion, we

review de novo the district court’s legal conclusions.                United

States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007).             In order

to succeed on a claim of ineffective assistance, a defendant must

show   that    his   counsel’s   performance   fell   below    an   objective

standard of reasonableness and that counsel’s deficient performance

was prejudicial.        Strickland v. Washington, 466 U.S. 668, 687

(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.       To satisfy the

second prong, the defendant must show that there is a reasonable

probability that his attorney’s errors altered the outcome of the

proceeding.      Id. at 694.

              Having reviewed the record and the district court’s

decision, we conclude that Gormley cannot establish that trial


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counsel was ineffective in his conduct regarding a “theory of the

defense” instruction.*   Thus, we affirm the portion of the district

court’s order rejecting this claim for the reasons stated by the

district court.   United States v. Gormley, Nos. 3:98-cr-00152-2;

3:03-cv-00340 (S.D. W. Va. June 22, 2006).    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 addition, to the extent that appellate counsel’s failure
to raise this issue on appeal was included in the district court’s
certificate of appealability, we find that this claim fails under
Strickland, as well.

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