UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5247
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY MCQUEEN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:04-cr-00257)
Submitted: October 31, 2007 Decided: November 15, 2007
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Alan H. Yamamoto, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Patrick Friel Stokes, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony McQueen appeals from the judgment imposed after
this court vacated his sentence for being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g) (2000), and remanded
for sentencing with application of the Armed Career Criminal Act.
McQueen’s attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). McQueen has filed a pro se
informal brief. The Government has declined to filed a brief.
McQueen argues that trial counsel was ineffective for
failing to raise relevant legal precedent related to the motion to
suppress, failing to demonstrate a strong command of the facts of
the case to rebut the Government’s statement of facts, failing to
strongly argue to the district court that the Government failed to
produce 911 tapes of the caller reporting McQueen’s vehicle, and
failing to argue that the district court’s decision regarding a
subpoena was arbitrary and capricious. McQueen also raises
ineffective assistance of counsel related to appellate counsel in
failing to request a rehearing en banc on the appeal issues,
failing to raise on appeal that the motion to suppress should have
been denied based upon illegal seizure and detainment, and failing
to raise issues he wanted the Supreme Court to review on petition
for writ of certiorari.
McQueen has waived review of the trial ineffective
assistance issues because these could have been raised on direct
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appeal from the original conviction and sentence. McQueen’s issues
related to appellate counsel in the original appeal and petition
for certiorari are unrelated to the order appealed from—the
district court’s judgment entering the new sentence. In any event,
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 28
U.S.C. § 2255 (2000) 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. To the extent that McQueen’s claims are properly raised, the
record does not conclusively establish ineffective assistance. See
Richardson, 195 F.3d at 198.
McQueen has filed a pro se informal brief raising the
following issues: trial and appellate counsel failed to raise
issues related to the dispatch call regarding suspicious vehicle;
trial and appellate counsel were ineffective in failing to object
to or raise on appeal the improper introduction of other crimes
evidence; trial and appellate counsel were ineffective in failing
to object to or raise on appeal the testimony of three Government
witnesses, and the district court abused its discretion in
permitting the testimony; and trial and appellate counsel were
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ineffective by failing to object or raise on appeal the district
court’s error in denying his motion to examine the jury list.
Again, as to the trial claims, these claims were waived when not
raised in the first direct appeal. The claims regarding appellate
counsel are unrelated to the appeal at hand, and the record does
not conclusively establish ineffective assistance of counsel.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm McQueen’s sentence. We grant
McQueen’s motion to file an amended supplemental brief and deny his
motion to substitute counsel. We further deny McQueen’s counsel’s
motion to withdraw. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may renew his motion for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. 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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