UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4193
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CALVIN DARNELL PARNELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:06-cr-00258-RDB)
Submitted: January 7, 2008 Decided: January 15, 2008
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Daniel A. Loeffler, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL,
P.L.L.C., Washington, D.C., for Appellant. Rod J. Rosenstein,
United States Attorney, Bryan M. Giblin, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Darnell Parnell appeals his conviction and 188-
month sentence imposed after he pled guilty, pursuant to a plea
agreement, to being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g) (2000). The
Government has moved to dismiss the appeal, asserting that Parnell
waived his right to appeal in the plea agreement. Parnell opposes
the Government’s motion claiming the appellate waiver is invalid
because he was denied effective assistance of counsel and because
the Government wrongfully withheld Giglio* material from him. We
grant the motion to dismiss in part, deny it in part, and affirm in
part.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. See United States v. Blick, 408 F.3d
162, 169 (4th Cir. 2005). Generally, if the district court fully
questions a defendant regarding the waiver of his right to appeal
during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid
and enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). Whether a defendant validly waived his right to
appeal is a question of law that we review de novo. See Blick, 408
F.3d at 168. Our review of the record reveals that, absent a claim
that would be excepted from the waiver, Parnell validly waived his
right to appeal.
*
Giglio v. United States, 405 U.S. 150 (1972).
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While it is true that Parnell may challenge the
voluntariness of his plea based on a claim of ineffective
assistance of trial counsel, see Johnson, 410 F.3d at 151,
ineffective assistance of counsel claims are not generally
cognizable on direct appeal unless ineffective assistance
“conclusively appears” on the record, see United States v. James,
337 F.3d 387, 391 (4th Cir. 2003). Although Parnell alleges his
attorney was ineffective in several respects, these allegations are
nothing more than the summary assertions of appellate counsel. In
fact, the record reveals that Parnell discussed his plea with his
privately retained attorney, that he was fully satisfied with his
attorney’s representation and the advice he provided, and that his
attorney had “argued good points on [his] behalf and he questioned
[his] witnesses with good questions and tried to bring out pretty
much the point I was trying to make.” Parnell admitted his
attorney had done everything he had asked him to do. Accordingly,
because we conclude that Parnell’s ineffective assistance of
counsel does not conclusively appear on the record, this claim is
not cognizable on direct appeal and must instead be asserted in an
appropriate motion for post-conviction relief.
Even assuming without deciding that the Government
wrongfully withheld Giglio material from Parnell, we find that its
failure to disclose the information--as well as the district
court’s failure to share the information with Parnell prior to
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sentencing--did not render Parnell’s plea involuntary. The Due
Process Clause requires the government to disclose to the defense
prior to trial any exculpatory or impeaching evidence in its
possession. See Giglio, 405 U.S. at 153-55 (requiring disclosure
of evidence affecting the credibility of prosecution witnesses);
Brady v. Maryland, 373 U.S. 83, 86-88 (1963) (requiring disclosure
of exculpatory evidence). Due process is violated, however, only
if the evidence in question: (1) is favorable to the defendant,
because it is either exculpatory or impeaching; (2) was suppressed
by the Government; and (3) is material. See Strickler v. Greene,
527 U.S. 263, 281-82 (1999).
Undisclosed evidence is material when its cumulative
effect is such that “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles v. Whitley, 514 U.S.
419, 433 (1995) (internal quotations omitted). A reasonable
probability is one sufficient to “undermine confidence” in the
outcome. Id. at 435. “As long as evidence is disclosed before it
is too late for the defendant to make effective use of it, there is
no due process violation.” United States v. Russell, 971 F.2d
1098, 1112 (4th Cir. 1992).
We conclude that Parnell’s mere assertion that he would
have insisted on going to trial had the Government disclosed the
alleged Giglio material is insufficient to render his plea
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involuntary. In fact, this assertion is belied by the fact that
after the district court informed Parnell of the existence of the
alleged Giglio material, and after it specifically informed Parnell
that the information would have no effect on its denial of
Parnell’s suppression motion, Parnell still insisted on pleading
guilty. Thus, Parnell may not now claim that his plea would have
been different had he been aware of the substance of that
information. See Burket v. Angelone, 208 F.3d 172, 191 (4th Cir.
2000) (“Absent clear and convincing evidence to the contrary, [a
criminal defendant] is bound by the representations he made during
the plea colloquy.”).
Accordingly, we grant the Government's motion to dismiss
Parnell’s appeal to the extent he challenges his sentence, deny the
Government's motion to dismiss to the extent Parnell’s appeal
challenges the voluntariness of his guilty plea based on alleged
ineffective assistance of counsel and an alleged Giglio violation,
and affirm as to these claims. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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