United States of America, Plaintiff Appellee, v. Michael Curtis, A/k/a Frank, Defendant Appellant, 23 F.3d 403 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 23 F.3d 403 (4th Cir. 1994) Submitted: March 29, 1994. Decided: May 6, 1994

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden, II, Chief District Judge. (CR-89-54, CA-93-211-2).

Michael Curtis, appellant pro se.

John Kirk Brandfass, Office of the U.S. Atty., Charleston, WV, for appellee.

S.D.W. Va.


Before WILKINSON, HAMILTON, and MICHAEL, Circuit Judges.


Appellant appeals from the district court's order denying his 28 U.S.C. § 2255 (1988) motion. Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit.*  Accordingly, we affirm on the reasoning of the district court. United States v. Curtis, Nos. CR-89-54; CA-93-211-2 (S.D.W. Va. Sept. 15, 1993). 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.



The district court properly dismissed the motion based on Appellant's failure to raise there claims on direct appeal, see United States v. Emanuel, 869 F.2d 795 (4th Cir. 1989), and because these nonconstitutional claims do not present a fundamental defect. United States v. Morrow, 914 F.2d 608 (4th Cir. 1990). However, the court's finding that Curtis abused the writ is not supported. See Woods v. Whitley, 933 F.2d 321, 322 n. 1 (5th Cir. 1991) (no abuse where earlier petition dismissed without prejudice)