                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 98-7274



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RAYMOND G. GERTH,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Fayetteville. Malcolm J. Howard, Dis-
trict Judge. (CR-93-28-3, CA-97-944-5-H)


Submitted:   December 30, 1998              Decided:   March 9, 1999


Before WILKINS and NIEMEYER, Circuit Judges, and BUTZNER, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Raymond G. Gerth, Appellant Pro Se. Robert Edward Skiver, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Appellant seeks to appeal the district court’s order denying

his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998).

We have reviewed the record and the district court’s opinion and

find no reversible error.        While summary judgment on Appellant’s

ineffective assistance of counsel claims should not have been based

upon an improperly sworn affidavit,* summary judgment was never-

theless properly granted on all such claims.       We dismiss the bal-

ance of Appellant’s claims on the reasoning of the district court.

United States v. Gerth, No. CR-93-28-3; CA-97-944-5-H (E.D.N.C.

Aug. 6, 1998).       Accordingly, we deny a certificate of appealabil-

ity.       We also deny Appellant’s motion for the appointment of coun-

sel.       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.




                                                             DISMISSED




       *
       In support of its motion for summary judgment, the
Government included an affidavit by Gerth’s counsel, Jeffrey L.
Starkweather, addressing Gerth’s ineffective assistance claims.
(R. 51, Ex. B). The affidavit does not indicate that the
attorney’s statement was made under the penalty of perjury.
Further, the notary’s attestation clause recites that “William E.
Scott,” not Starkweather, appeared before her.


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