United States v. Rose Brooks , 444 F. App'x 629 ( 2011 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 appealed, 1 and her counsel filed an Anders 2
brief certifying that there are no meritorious 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) counsel’s performance fell below an
objective standard of reasonableness; and (2) counsel’s
deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). 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
239 (4th Cir. 2006). As counsel notes, “in most cases a motion
brought under § 2255 is preferable to direct appeal for deciding
claims of ineffective assistance.” Massaro v. United States,
538 U.S. 500, 504 (2003). Typically, as here, “[w]hen an
ineffective-assistance claim is brought on direct 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 deficient performance by counsel below.
Therefore, we decline to address this claim in this 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 complied with Rule 11’s
3
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
requirements. We note that the magistrate judge neglected to
advise Brooks of the court’s obligation to impose a special
assessment, as required by Rule 11(b)(1)(L). 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. We therefore affirm Brooks’ conviction and
sentence. This court requires that counsel inform Brooks, in
writing, of the right to petition the Supreme Court of the
United States for further review. 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 contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
4