Summary
surveying jurisdictions and finding that "it is at least arguable that failure to communicate a preliminary communication . . . could constitute deficient performance."
Summary of this case from Bernardez v. United StatesOpinion
No. 16-7577
04-12-2017
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TOMMY EDWARD YOUNG, SR., Defendant - Appellant.
Tommy Edward Young, Sr., Appellant Pro Se. Eumi Lynn Choi, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
UNPUBLISHED
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:09-cr-00223-1; 2:13-cv-10108) Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Tommy Edward Young, Sr., Appellant Pro Se. Eumi Lynn Choi, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Tommy Edward Young, Sr., appeals the district court's order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2255 (2012) motion. As the district court granted a certificate of appealability on Young's claim of ineffective assistance of counsel, 28 U.S.C. § 2253(c) (2012), we review the district court's legal conclusions de novo and its findings of fact derived from the evidence adduced at the evidentiary hearing for clear error. United States v. Fulks, 683 F.3d 512, 516 (4th Cir. 2012). On appeal, Young reasserts his contention that he is entitled to relief under Missouri v. Frye, 566 U.S. 133, 144-47 (2012). We have reviewed the record and Young's assertions and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Young, Nos. 2:09-cr-00223-1; 2:13-cv-10108 (S.D. W. Va., Sept. 29, 2016). 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.
We note that in his informal brief, while claiming that counsel's performance was deficient, Young failed to challenge the district court's conclusion that Young did not demonstrate any prejudice resulting from counsel's alleged deficiency. See Strickland v. Washington, 466 U.S. 668, 687 (1984). As such, Young has forfeited appellate review of that aspect of his claim. See Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (recognizing that 4th Cir. R. 34(b) limits appellate review to issues raised in informal brief). --------
AFFIRMED