United States of America, Plaintiff-appellee, v. Daniel Roger Nisely, Defendant-appellant, 894 F.2d 403 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 894 F.2d 403 (4th Cir. 1990) Submitted: July 11, 1989. Decided: Jan. 2, 1990

William E. Martin, Federal Public Defender; G. Alan Dubois, Assistant Federal Public Defender, on brief, for appellant.

Dale J. Stone, Special Assistant United States Attorney, Office of the Staff Judge Advocate, on brief, for appellee.

Before WIDENER, K.K. HALL and MURNAGHAN, Circuit Judges.


Daniel Roger Nisely appeals his conviction of three counts of assault with a dangerous weapon, 18 U.S.C. § 113(c). His attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), indicating that, in his view, the only arguably meritorious issue is that a statement by Nisely was involuntary. Nisely has filed an informal brief arguing that his conviction violated due process because of pre-indictment delay. In accordance with Anders, we have examined the entire record, including the imposition of sentence. Finding no merit in the claims presented and no other error upon review of the record, we affirm the judgment of conviction.

Nisely's motion to voluntarily dismiss, founded upon his mistaken belief that such a disposition is required in order to pursue a 28 U.S.C. § 2255 action, is denied. Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964, 18 U.S.C. § 3006A, counsel has the obligation to advise Nisely, in writing, of his right to petition the United States Supreme Court for a writ of certiorari and, if Nisely so desires, to prepare the necessary papers. We therefore deny counsel's motion to withdraw from further representation. We dispense with oral argument because the facts and legal arguments are adequately presented in the record and briefs, and oral argument would not aid the decisional process.