US v. Daniel Bifield, No. 13-4428 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4428 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL EUGENE BIFIELD, a/k/a Diamond Dan, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:12-cr-00430-CMC-1) Submitted: November 21, 2013 Decided: December 3, 2013 Before MOTZ, GREGORY, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. William W. Watkins, Sr., WILLIAM W. WATKINS, PA, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Julius N. Richardson, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Daniel Bifield pled guilty, pursuant to a written plea agreement, to conspiracy to engage in a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d) (2012). The district court sentenced Bifield to 210 months imprisonment. Bifield entered his plea with his wife, Lisa, who was a codefendant in his case. pleading guilty guilty. plea on Lisa s plea was contingent on Bifield Bifield the initially ground that sought the to withdraw Government engaged his in prosecutorial misconduct by not informing him that Lisa s plea required already cooperation given with statements the to Government the and that Government. she After had being informed of the consequences if his motion to retract his guilty plea were motion to withdrew granted, retract his Government and his motion. committed being warned plea would On appeal, that waive prosecutorial withdrawal his Bifield claims, argues misconduct, of Bifield that that his as the a consequence his plea was not knowing and voluntary, and that his counsel was ineffective. We conclude We affirm. that, by withdrawing his motion to withdraw his guilty plea, Bifield has waived his claims that the Government committed prosecutorial misconduct and that his plea was not knowing and voluntary. United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) ( A party who identifies an issue, 2 and then explicitly withdraws it, has waived the issue. ); see also United States v. Guzman, 707 F.3d 938, 941 n.2 (8th Cir. 2013) (noting that appellant waived argument that Government breached plea agreement by withdrawing motion to withdraw guilty plea); United States v. Chapman, 209 F. App x 253, 267 n.4 (4th Cir. 2006) (noting that withdrawal of [an] objection amounts to a waiver of any complaint [regarding the action to which the objection was made], precluding us from considering the issue even under plain error review ) (argued but unpublished). An appellant on appeal. is precluded from resurrecting See Rodriguez, 311 F.3d at 437. a waived issue Such waiver is to be distinguished from a situation in which a party fails to make a timely assertion of a right -- what courts typically call a forfeiture, id. (quoting United States v. Olano, 507 U.S. 725, 733 (1993)), which may be reviewed on appeal for plain error, see Olano, 507 U.S. at 733-34. Although Bifield waived his claims regarding prosecutorial misconduct and the voluntariness of his plea, he has not However, waived his ineffective of ineffective claims assistance of assistance counsel of counsel claim. are generally not cognizable on direct appeal. United States v. Benton, see 523 F.3d 424, 435 (4th Cir. 2008); also United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (noting same). Instead, to allow for adequate 3 development of the record, a defendant must ordinarily bring his ineffective claims in a motion pursuant to 28 U.S.C. § 2255. F.3d at 295. assistance See King, 119 We may entertain such claims on direct appeal only if the record conclusively shows that defense counsel did not provide effective representation. Id.; see also United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); cf. Strickland v. Washington, 466 U.S. 668, 687-94 (1984) (explaining standard for ineffective assistance of counsel). We conclude that Bifield has not shown that the record conclusively demonstrates counsel s ineffectiveness. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4
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