US v. Moya Moore

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [998860230-2]. Originating case number: 4:10-cr-00046-BO-1 Copies to all parties and the district court/agency. [998909070].. [11-5073, 11-5190]

Appeal: 11-5073

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5073

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOYA VANTION MOORE,
Defendant - Appellant.

No. 11-5190

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN EARL CANNON,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina, at Greenville.
Terrence W. Boyle,
District Judge. (4:10-cr-00046-BO-1; 4:10-cr-00046-BO-2)

Submitted:

July 13, 2012

Decided:

Before KING, DIAZ, and FLOYD, Circuit Judges.

August 3, 2012

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No. 11-5073:
Dismissed, and No. 11-5190:
Dismissed in part,
affirmed in part, by unpublished per curiam opinion.

Rudolph A. Ashton, III, MCCOTTER ASHTON, P.A., New Bern, North
Carolina; Dennis M. Hart, Washington, D.C., for Appellants.
Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY,
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In
appeal

his

Case

No.

235-month

11-5073,

Moya

sentence.

Vantion

The

Moore

Government

seeks

has

to

moved

to

dismiss the appeal as barred by Moore’s waiver of the right to
appeal included in the plea agreement.

Upon review of the plea

agreement and the transcript of the Fed. R. Crim. P. 11 hearing,
we

conclude

that

Moore

knowingly

and

voluntarily

waived

his

right to appeal and that the issues Moore seeks to raise on
appeal

fall

squarely

appellate rights.

within

the

compass

of

his

waiver

of

Accordingly, we grant the Government’s motion

to dismiss.
In
appeal

his

Case

No.

292-month

11-5190,

Marvin

sentence.

The

Earl

Cannon

Government

has

seeks

to

moved

to

dismiss the appeal as barred by Cannon’s waiver of the right to
appeal included in the plea agreement.
agreement,

we

conclude

that

waived his right to appeal.

Cannon

Upon review of the plea

knowingly

and

voluntarily

Further, with the exception of his

claim of ineffective assistance of counsel, the claims Cannon
seeks to raise on appeal fall squarely within the compass of his
waiver of appellate rights.

Thus, we grant the Government’s

motion to dismiss Cannon’s appeal except as to Cannon’s claim
that he received ineffective assistance of counsel.
Cannon’s

appellate

waiver

ineffective assistance of counsel.
3

excepted

appeals

based

on

He therefore has not waived

Appeal: 11-5073

his

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right

to

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pursue

this

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claim

on

direct

appeal.

However,

claims of ineffective assistance of counsel are not cognizable
on direct appeal unless the record conclusively establishes that
counsel

provided

ineffective

assistance.

United

States

v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); see also United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (“[I]t is well
settled that a claim of ineffective assistance should be raised
in a 28 U.S.C. § 2255 motion in the district court rather than
on

direct

ineffective

appeal,

unless

assistance.”)

the

record

(internal

conclusively

quotation

marks

shows

omitted).

The record does not conclusively establish that Cannon’s counsel
was

ineffective.

Thus,

we

affirm

Cannon’s

conviction

and

sentence to the extent that he makes this challenge.
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.

No. 11-5073: DISMISSED
No. 11-5190: DISMISSED IN PART, AFFIRMED IN PART

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