US v. Larry Lewis, No. 08-4678 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4678 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY JAMIE LEWIS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:07-cr-00481-TLW-10) Submitted: August 26, 2009 Decided: December 4, 2009 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. John M. Ervin, III, ERVIN LAW OFFICE, Darlington, South Carolina, for Appellant. Arthur Bradley Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Larry Jamie Lewis pled guilty to conspiracy to possess cocaine base with the intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1) (2006). The (West Supp. district followed imprisonment, court by 2009) sentenced five years and Lewis of 21 to U.S.C. 120 supervised § 846 months release. His counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), claiming there are no meritorious issues for review but questioning whether the district court complied with Fed. R. Crim. P. 11 in accepting Lewis s guilty plea. pro se whether supplemental his pressuring brief counsel him to presents provided plead guilty, the additional Lewis s issues ineffective assistance whether search the of by warrant violated the Fourth Amendment, whether the Government committed prosecutorial misconduct by refusing to share discovery with the defense before arraignment. trial, and whether Lewis was denied a proper Lewis also moves this court for appointment of a new attorney. Because Lewis did not move in the district court to withdraw his guilty plea or otherwise raise Rule 11 error, this court s review is for plain error. 535 U.S. 55, 59 (2002). See United States v. Vonn, Thus, it is Lewis s burden to show an error that was plain and affected his substantial rights, and show that this court should exercise its discretion to notice 2 the error. United States v. Martinez, 277 F.3d 517, 529 (4th Cir. 2002). The district court, through colloquy with Lewis, informed of him the nature of the charge against him, the mandatory minimum penalty, the maximum possible penalty, and of the various rights he was relinquishing by pleading guilty. addition, the district basis for the plea. court determined there was a In factual Our review of the transcript reveals full compliance with the requirements of Fed. R. Crim. P. 11, and we conclude that Lewis pled guilty knowingly and voluntarily. Turning to Lewis s claim that he received ineffective assistance of counsel, such claims are generally not cognizable on direct appeal. Cir. 1997). United States v. King, 119 F.3d 290, 295 (4th Instead, ineffective assistance claims are appropriately brought pursuant to 28 U.S.C.A. § 2255 (West Supp. 2009) to allow for adequate development of the factual record. See King, 119 F.3d at 295. A defendant may raise an ineffective counsel claim on direct appeal only if the record conclusively demonstrates that representation. show objective reasonable both counsel did not provide effective United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). must defense To prove ineffective assistance a defendant that standard of probability counsel s representation reasonableness that, but for and fell that counsel s below there is an a unprofessional errors, the result of the proceeding would have been different. 3 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) (noting that certain types of presumption of prejudice). ineffective assistance warrant a We have reviewed the record, and it does not conclusively demonstrate that defense counsel did not provide effective representation. Accordingly, we decline to address this claim on direct appeal. Lewis raises additional issues in his pro se brief relating to the search warrant, discovery, and his arraignment. However, a valid guilty plea waives all nonjurisdictional antecedent defects, including constitutional challenges to the pretrial proceedings. n.2 (1975); Tollett See Menna v. New York, 423 U.S. 61, 62-63 v. Henderson, 411 U.S. 258, 267 (1973). Lewis s intelligent and voluntary guilty plea established his factual guilt, rendering any constitutional violations in the pretrial proceedings irrelevant. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Lewis s conviction and sentence, and deny his motion for appointment of new counsel. This court requires that counsel inform Lewis, in writing, of the right to petition the Supreme Court of the United States for further review. If Lewis requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw 4 from representation. Counsel s motion must state that a copy thereof was served on Lewis. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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