United States of America, Plaintiff-appellee, v. Dennis Williams, A/k/a Dennis Leonard, A/k/a Nushwill St.albans Williams, A/k/a George Washington Barker,a/k/a Devon, Defendant-appellant, 993 F.2d 229 (4th Cir. 1993)

OPINION

Dennis Williams appeals from a district court's order dismissing his 28 U.S.C. § 2255 (1988) motion. We affirm the district court's order.

Williams contended below that the trial court erred in instructing the jury when it stated that " [p]roof of guilt, beyond a reasonable doubt has never been required in criminal cases." Certainly, such a statement is erroneous. However, the trial transcript reveals that the district court immediately noted and corrected its error; the court then stated that "proof beyond all doubt has never been required in criminal cases." Further, the transcript reveals that the trial court correctly stated the burden of proof several other times throughout its instructions to the jury.

Because Williams did not object to the instruction at trial nor raise the issue on appeal, he has waived the issue here. Stone v. Powell, 428 U.S. 465, 477 n.10 (1976); United States v. Bryant, 612 F.2d 799 (4th Cir. 1979), cert. denied, 446 U.S. 919 (1980); Fed. R. Crim. P. 30. Williams's attorney did not err in not objecting, and the error in the instruction did not "infect" the entire trial, such that the conviction violated due process. United States v. Frady, 456 U.S. 152, 167-69 (1982). Therefore, his claim fails.

The district court erred when it failed to give notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). However, the error was harmless because Williams could not have presented any evidence in support of his claim to counter the trial transcript. Further, the district court should have granted summary judgment rather than dismissing the action because it considered matters outside the pleadings in determining the merits of the claim. Fed. R. Civ. P. 12(c). Construing the district court's order as one granting summary judgment, we affirm the district court's order.

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