United States v. Cherisson ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-7086
RAYMOND CHERISSON, a/k/a Haitian
James,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-94-97-15-5-BO, CA-98-69-5-BO)
Submitted: January 29, 1999
Decided: March 22, 1999
Before ERVIN and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
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COUNSEL
Raymond Cherisson, Appellant Pro Se. Fenita Morris Shepard,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Raymond Cherisson seeks to appeal the district court's order deny-
ing his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp.
1998). Cherisson raises several claims of ineffective assistance of
counsel. We have reviewed the record and the district court's opinion
and find no reversible error as to most of his claims.
Cherisson has submitted a photocopy of his passport, previously
unavailable, to support his allegation that his appointed attorney was
ineffective for failing to obtain the passport and introduce it at trial.
Cherisson claims that the passport proves that he could not have com-
mitted any of the substantive counts of distribution because he was
out of the country in August, September, and October 1993. With
regard to the distribution counts covering August and October, even
if the passport does verify the travel dates Cherisson claims, Cheris-
son was not prejudiced by counsel's failure to obtain the passport for
use at trial. However, with regard to the distribution count covering
September 1993, there is some indication that the stamped travel
dates support Cherisson's claim that he was in Haiti for the entire
month.* The record does not indicate that any evidence was intro-
duced to establish that Cherisson did anything outside of North Caro-
lina to promote drug sales in the state. Therefore his conviction may
be solely based on evidence of his actions in the state.
Because the passport is new evidence, originally unavailable to the
district court, that may have some bearing on the September 1993 dis-
tribution count, we vacate and remand as to this claim for further pro-
ceedings in light of this new submission. See generally Zenith Radio
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*We note that the photocopy of the passport is not clear. The district
court may consider allowing Cherisson to supplement the record in this
case to include the original passport.
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Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969). We
affirm as to all of Cherisson's other claims. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED IN PART, VACATED AND REMANDED IN PART
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