United States v. Michael Toal
Filing
PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Morris S. Arnold and Lavenski R. Smith (UNPUBLISHED); Granting [3917253-2] motion to withdraw as counsel subject to counsel's compliance with Part V of the Court's Plan to Implement the Criminal Justice Act. [3980338] [12-2031]
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2031
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Michael D. Toal
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: November 22, 2012
Filed: December 3, 2012
[Unpublished]
____________
Before MURPHY, ARNOLD, and SMITH, Circuit Judges.
____________
PER CURIAM.
Michael D. Toal directly appeals after he pled guilty to production of child
pornography in violation of 18 U.S.C. § 2251(a) and the district court1 sentenced him
1
The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Judge for the Western District of Missouri.
Appellate Case: 12-2031
Page: 1
Date Filed: 12/03/2012 Entry ID: 3980338
to 300 months in prison and 15 years of supervised release. Toal’s counsel has moved
to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
raising numerous issues on Toal’s behalf. Toal has filed a supplemental brief raising
essentially the same issues.
Toal pled guilty pursuant to a written plea agreement containing a waiver of his
right to appeal his sentence, directly or collaterally, except for claims of ineffective
assistance of counsel, prosecutorial misconduct, or an illegal sentence. We note that
an ineffective-assistance claim asserted on appeal is not barred by the appeal waiver,
but we decline to consider it on direct appeal. See United States v. McAdory, 501
F.3d 868, 872-73 (8th Cir. 2007) (appellate court ordinarily defers ineffectiveassistance claims to 28 U.S.C. § 2255 proceedings). As to the remaining issues
asserted on appeal, we conclude that the appeal waiver is enforceable. See United
States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (discussing
enforcement of appeal waivers).
Finally, having reviewed the record independently pursuant to Penson v. Ohio,
488 U.S. 75 (1988), we find no nonfrivolous issues for appeal. Accordingly, we
decline to consider Toal’s ineffective-assistance claim on direct appeal, we dismiss
the appeal based on the appeal waiver, and we grant counsel’s motion to withdraw,
subject to counsel informing appellant about procedures for seeking rehearing or filing
a petition for certiorari.
______________________________
-2-
Appellate Case: 12-2031
Page: 2
Date Filed: 12/03/2012 Entry ID: 3980338
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?