US v. Rose Brook

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:08-cr-00048-RLV-DSC-2 Copies to all parties and the district court/agency. [998623996].. [10-5127]

Appeal: 10-5127

Document: 30

Date Filed: 07/01/2011

Page: 1 of 4

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 07/01/2011

Page: 2 of 4

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

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Document: 30

Date Filed: 07/01/2011

239 (4th Cir. 2006).

Page: 3 of 4

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

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requirements.
advise

Page: 4 of 4

We note that the magistrate judge neglected to

Brooks

assessment,

Date Filed: 07/01/2011

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