United States v. Shade , 237 F. App'x 894 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER LEE SHADE,
Defendant - Appellant.
No. 06-5040
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER LEE SHADE,
Defendant - Appellant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (3:02-cr-00045-WCB; 3:04-cv-00037-WCB)
Submitted: July 27, 2007 Decided: August 17, 2007
Before MOTZ and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Kevin D. Mills, LAW OFFICES OF KEVIN D. MILLS, Martinsburg, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Paul T. Camilletti, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Christopher Lee Shade pleaded guilty pursuant to a plea
agreement to one count of aiding and abetting the distribution of
6.57 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2000). The district court sentenced Shade to 112 months
of imprisonment, four years of supervised release, and a $100
special assessment. After counsel failed to file a notice of
appeal, Shade filed a motion pursuant to 28 U.S.C. § 2255 (2000),
in which he alleged three claims of ineffective assistance of
counsel. The district court granted relief on Shade’s § 2255
motion solely to allow him a belated appeal. The court held a
resentencing hearing and imposed the same sentence imposed at the
prior sentencing. Shade timely appealed.
On appeal, Shade asserts that the district court erred in
rejecting the magistrate judge’s recommendation on his § 2255
motion that his plea and appeal waiver were not knowing and
voluntary, and argues that counsel provided ineffective assistance.
The Government responds, arguing that whether Shade’s appeal waiver
was knowing and voluntary is moot because Shade has been allowed an
appeal and the Government is not seeking to dismiss the appeal
based on his waiver. The Government also argues that Shade has
never sought to withdraw his guilty plea and did not assert that
his plea was involuntary in his § 2255 motion, and that Shade has
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failed to show that ineffective assistance of counsel conclusively
appears on the record. We affirm.
We conclude that the Government is correct that Shade’s
argument regarding the waiver of his right to appeal is moot
because the Government is not seeking to enforce the waiver of his
appellate rights that was included in his plea agreement. See
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Shade
did not move in the district court to withdraw his guilty plea or
otherwise assert that his plea was not knowing and voluntary;
therefore, this court reviews whether his plea was knowing and
voluntary for plain error. See United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). To demonstrate plain error, Shade must
establish that error occurred, that it was plain, and that it
affected his substantial rights. United States v. Hughes, 401 F.3d
540, 547-48 (4th Cir. 2005). If a defendant satisfies these
requirements, the court’s “discretion is appropriately exercised
only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted). Our review of the record
leads us to conclude that the district court conducted a thorough
inquiry pursuant to Fed. R. Crim. P. 11 that verified that Shade’s
guilty plea was knowing and voluntary.
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Shade also asserts that counsel was ineffective in
failing to file a notice of appeal as requested, and several other
claims related to counsel’s representation. Claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal. See United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Rather, to allow for adequate development of the record, a
defendant must bring his claim in a § 2255 motion. See id.; United
States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception
exists when the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999); King, 119 F.3d at 295. Shade was granted relief, in
the form of a belated appeal, on his claim that counsel failed to
file a notice of appeal. With respect to the remaining claims, our
review of the record leads us to conclude that it does not
conclusively show that counsel was ineffective. We therefore
decline to consider Shade’s allegations of ineffective assistance
of counsel, as Shade may raise them in another § 2255 motion.
“[W]hen 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) (quoting Shepeck v. United States, 150 F.3d
800, 801 (7th Cir. 1998)).
Accordingly, we affirm Shade’s conviction and sentence.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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