United States v. Jack ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-7342
ALVIN S. JACK,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CR-91-226-HAR, CA-94-1750-HAR)
Submitted: January 23, 1996
Decided: March 11, 1996
Before HALL and NIEMEYER, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Alvin S. Jack, Appellant Pro Se. Richard Douglas Bennett, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant appeals from the district court's order denying his 28
U.S.C. § 2255 (1988) motion. We have reviewed the record and the
district court's opinion and find no reversible error. Accordingly, we
affirm. Although the district court reached the correct result, we deem
it appropriate to set forth briefly the reasons supporting the denial of
the motion.
In his § 2255 motion, Jack attempts to reargue several issues
resolved in his initial appeal. These claims cannot be the basis for his
collateral attack. Boeckenhaupt v. United States , 537 F.2d 1182, 1183
(4th Cir.), cert. denied, 429 U.S. 863 (1976). Each of Jack's several
statutory claims are non-constitutional in nature and are therefore
inappropriate for collateral proceedings. Stone v. Powell, 428 U.S.
465, 477 n.10 (1976); United States v. Emanuel , 869 F.2d 795, 796
(4th Cir. 1989). Similarly, Jack's challenge to the district court's tech-
nical application of the sentencing guidelines does not give rise to a
constitutional claim. See United States v. Marin , 961 F.2d 493, 496
(4th Cir. 1992). Jack's complaint regarding the Government's choice
of statutes to include in the indictment is meritless. "When the same
conduct violates overlapping statutes, the prosecutor can elect to
charge the defendant under either." United States v. Brewer, 528 F.2d
492, 498 (4th Cir. 1975); see United States v. Lewis, 657 F.2d 44, 45
(4th Cir.), cert. denied, 454 U.S. 1086 (1981). Jack's claim that the
search warrant was invalid is waived based on his failure to show
cause for and prejudice resulting from his failure to object to the war-
rant prior to trial. Davis v. United States, 411 U.S. 233, 241-44
(1973); United States v. Schmidt, 935 F.2d 1440, 1450 (4th Cir.
1991); see Fed. R. Crim. P. 12(b). Finally, we conclude that Jack has
failed to bear his burden of proving that any of defense counsel's
alleged errors were prejudicial. Strickland v. Washington, 466 U.S.
668 (1984); see Hutchins v. Garrison, 724 F.2d 1425, 1430-31 (4th
Cir. 1983), cert. denied, 464 U.S. 1065 (1984).
We grant Jack's motion to file his pro se formal brief and deny his
motion for sanctions against the Appellee. We dispense with oral
argument because the facts and legal contentions are adequately pres-
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ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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