United States v. Rashid ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5105
MALIK RASHID,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5129
WALTER LITTLE, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5130
SANDRA GAMBLE MORRISON,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Williams, Senior District Judge, sitting by designation.
(CR-92-270-MU)
Submitted: February 27, 1998
Decided: March 26, 1998
Before NIEMEYER and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
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COUNSEL
Claire J. Rauscher, Charlotte, North Carolina; James H. Wade, Char-
lotte, North Carolina; Randolph M. Lee, Charlotte, North Carolina,
for Appellants. Mark T. Calloway, United States Attorney, Robert J.
Higdon, Jr., Assistant United States Attorney, Charlotte, North Caro-
lina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Defendants Malik Rashid, Walter Little, Jr., and Sandra Morrison
were convicted by a jury of conspiracy to possess with intent to dis-
tribute and to distribute heroin under 21 U.S.C.§ 846 (1994). On
appeal, Rashid alleges ineffective assistance of counsel; Little and
Morrison allege that the district court erred because it failed to grant
them a continuance on the grounds that two of their witnesses had not
been produced for trial. For the reasons that follow, we affirm.
Criminal defendants have a right to effective assistance of counsel.
See Strickland v. Washington, 466 U.S. 668, 684-85 (1984). Unless
it conclusively appears from the record that defense counsel did not
provide effective representation, however, a claim of ineffective assis-
tance of counsel should be first raised in a motion under 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1997). See United States v. Gastiaburo,
16 F.3d 582, 590 (4th Cir. 1994). The issue of ineffective assistance
is more properly raised in a § 2255 proceeding where the petitioner
may establish an adequate record for resolution of the issue, including
a statement from trial counsel to explain the reasons surrounding the
2
action or inaction he took to which petitioner objects. See United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Generally
"[w]ithout such a full record . . . `it is impossible to make a reasoned
judgment as to whether or not representation was ineffectual.'" Id.(quoting United States v. Lurz, 666 F.2d 69, 78 (4th Cir. 1981)).
Rashid argues that because his Presentence Report revealed a his-
tory of mental problems and because Rashid sought to represent him-
self, his counsel was ineffective for failing to order a competency
hearing or other mental health evaluation. As noted by the Govern-
ment, however, his last record of mental health problems was in 1981.
We do not find that the current record conclusively shows that trial
counsel failed to effectively represent Rashid and therefore deny this
claim on direct appeal. See DeFusco, 949 F.2d at 120-21.
District courts are granted broad discretion in determining whether
a continuance should be granted. See Morris v. Slappy, 461 U.S. 1,
11-12 (1983). We review the failure to grant a continuance for an
abuse of discretion. See United States v. Hoyte , 51 F.3d 1239, 1245
(4th Cir. 1995). To prevail "defendants must show the denial preju-
diced their case." Id.; see also United States v. Myers, 66 F.3d 1364,
1369-70 (4th Cir. 1995) (defining abuse of discretion for denying a
continuance due to limited time for attorney preparation as "an unrea-
soning and arbitrary insistence upon expeditiousness in the face of a
justifiable request for a delay'" (quoting Morris, 461 U.S. at 11-12)).
The facts reveal that Little and Morrison sought a continuance of
their case on the morning of trial because two witnesses were not
present, even though the trial court had previously granted their
motion to have the witnesses produced at trial. The trial judge denied
the Defendants' motion for a continuance and ordered the United
States Marshal to have the witnesses present for trial.1 Little and Mor-
rison allege that their defense was prejudiced because their continu-
ance was denied.
We do not find that Little and Morrison have shown that the district
court's denial of their continuance motion prejudiced their case. First,
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1 The witnesses apparently were in federal custody.
3
as noted by the Government, although the Defendants presented no
evidence at trial, they failed to allege that that decision was based
upon the lack any necessary witnesses--or whether the witnesses they
sought were actually available at trial. Second, as noted in Little and
Morrison's brief filed on appeal, one of the witnesses, Tonya Sloan,
did testify for the Government and therefore was present in the court-
room to testify on behalf of the Defendants, if called. Finally, Little
and Morrison have failed to allege how they were prejudiced by the
trial court's denial of their motion to continue, except to note that
their previous trial ended in a mistrial due to a hung jury.2 Under
these circumstances, we do not find that Morrison and Little have met
their burden to show prejudice. See Hoyte, 51 F.3d at 1245.
Accordingly, we affirm the convictions of Rashid, Little, and Mor-
rison. 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
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2 They were previously tried with other defendants in July 1993.
4