US v. Larry Lewis

Filing 920091204

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4678 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY JAMIE LEWIS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. (2006). 841(a)(1) The (West Supp. 2009) and Lewis of 21 to U.S.C. 120 846 district followed court by sentenced years months' release. imprisonment, five supervised 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 supplemental his him brief presents the additional Lewis's of by issues whether counsel to provided guilty, ineffective whether the assistance search pressuring plead warrant violated the Fourth Amendment, whether the Government committed prosecutorial misconduct by refusing to share discovery with the defense before trial, and whether Lewis was denied a proper arraignment. new attorney. Lewis also moves this court for appointment of a 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. Cir. 2002). informed United States v. Martinez, 277 F.3d 517, 529 (4th The district court, through colloquy with Lewis, of the nature of the charge against him, the him mandatory minimum penalty, the maximum possible penalty, and of the various rights he was relinquishing by pleading guilty. addition, the district court determined there was a In factual basis for the plea. 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 defense counsel did not provide effective representation. (4th Cir. 2006). must show both United States v. Baldovinos, 434 F.3d 233, 239 To prove ineffective assistance a defendant "that of counsel's representation and fell below is an a objective reasonable standard reasonableness" that, but for "that there probability counsel's 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 ineffective assistance warrant a presumption of prejudice). We have reviewed the record, and it does not conclusively demonstrate that defense counsel did not provide effective representation. 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 Accordingly, we decline to 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 4 withdraw 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 and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 5

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