US v. Larry Lewis

Filing 920091204

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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