US v. Rose Brook, No. 10-5127 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5127 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROSE MARY BROOKS, Rosie Brooks, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:08-cr-00048-RLV-DSC-2) Submitted: June 22, 2011 Decided: July 1, 2011 Before SHEDD, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Dennis E. Jones, DENNIS E. JONES & ASSOCIATES, P.C., Lebanon, Virginia, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rose Mary Brooks pleaded guilty, pursuant to a plea agreement, to one count of wire fraud, in violation of 18 U.S.C. § 1343 (2006). The district court sentenced Brooks to 108 months imprisonment and ordered her to pay restitution. Brooks brief appealed, 1 certifying that and there her are counsel no filed meritorious an Anders 2 issues for appeal but asking this court to review whether Brooks was denied effective assistance of counsel when trial counsel failed to investigate and develop mitigating evidence concerning Brooks mental illness. Brooks has not filed a pro se supplemental brief, though informed of her right to do so. To establish ineffective assistance of counsel, Brooks must show that: (1) objective standard of deficient performance counsel s performance reasonableness; was and prejudicial. Washington, 466 U.S. 668, 687-88 (1984). fell (2) below an counsel s Strickland v. Claims of ineffective assistance of counsel are generally not cognizable on direct appeal, unless counsel s ineffectiveness conclusively appears from the record. United States v. Baldovinos, 434 F.3d 233, 1 Brooks did not initially file an appeal. However, the district court granted her 28 U.S.C.A. § 2255 (West Supp. 2010) motion in part, in order to afford her a direct appeal. 2 Anders v. California, 386 U.S. 738 (1967). 2 239 (4th Cir. 2006). As counsel notes, in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance. 538 U.S. 500, 504 (2003). ineffective-assistance Massaro v. United States, Typically, claim is as brought here, on [w]hen direct an appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Id. at 504-05. The appellate record here falls short of conclusively demonstrating Therefore, we deficient decline to performance address this by counsel claim in this below. appeal, noting that Brooks may pursue it in a motion filed pursuant to 28 U.S.C.A. § 2255. 3 In the course of our Anders review, we have assessed the Fed. R. Crim. P. 11 plea colloquy and conclude that the district court substantially 3 complied with Rule 11 s Although Brooks has already filed a § 2255 motion, where, as here, a prisoner s first § 2255 motion is granted to reenter judgment and permit a direct appeal, the counter of collateral attacks pursued is reset to zero. In re Goddard, 170 F.3d 435, 438 (4th Cir. 1999) (internal quotation marks omitted). In reviewing Brooks initial § 2255 motion, the district court properly dismissed her additional claims without prejudice. This will allow [Brooks] to raise collateral claims in a subsequent § 2255 motion filed after the direct appeal is concluded. Id. at 438. 3 requirements. advise We note that the magistrate judge neglected to Brooks assessment, of as the court s required by obligation Rule to impose 11(b)(1)(L). a special However, the omission did not affect Brooks substantial rights, Rule 11(h), because she agreed to pay the special assessment as part of her plea agreement and the Government reviewed this provision during the Rule 11 colloquy. In accordance with Anders, we have thoroughly reviewed the entire record in this case and have found no meritorious issues for appeal. sentence. writing, We therefore affirm Brooks conviction and This court requires that counsel inform Brooks, in of the right to petition United States for further review. the Supreme Court of the If Brooks 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 from representation. Counsel s motion must state that a copy thereof was served on Brooks. 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 4
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