UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4982
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL GRAYLEN WHEELER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:04-cr-00066-RLV)
Submitted: July 31, 2008 Decided: August 4, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Algernon Williams, Sr., LAW OFFICE OF ALGERNON WILLIAMS, SR.,
Charlotte, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Michael Graylen Wheeler pled guilty to one count of
possession with intent to distribute cocaine base, in violation of
21 U.S.C. § 841 (2000), and one count of using and carrying a
firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) (2000). The district court
sentenced Wheeler to a total of 152 months’ imprisonment. Wheeler
timely appealed. His attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), identifying no
meritorious grounds for appeal but questioning whether the district
court erred in calculating Wheeler’s criminal history points.
Wheeler filed a supplemental pro se brief claiming that he was
denied effective assistance of counsel.
Counsel questions whether the district court erred in
calculating Wheeler’s criminal history points, alleging that the
government did not refute Wheeler’s testimony that five of his
prior convictions were attained without the representation of
counsel. A defendant may challenge at sentencing the validity of
a prior conviction on the ground that he was denied counsel.
Custis v. United States, 511 U.S. 485, 495 (1994). However, he
bears the burden of showing that the prior conviction is invalid.
United States v. Jones, 977 F.2d 105, 110-11 (4th Cir. 1992).
Wheeler had to overcome the presumption that the state court
informed him of his right to counsel as it was required by statute
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to do, and that, if he was not represented, it was because he
waived his right to counsel. See Parke v. Raley, 506 U.S. 20,
28-34 (1992). Although he testified that he did not recall having
counsel or waiving his right to counsel for the challenged
convictions, Wheeler offered no affirmative evidence to rebut the
presumption that he had counsel or signed a waiver of counsel form.
Thus, the district court did not err in overruling Wheeler’s
objection and considering the prior convictions in calculating his
criminal history.
In his supplemental pro se brief, Wheeler asserts that he
was denied effective assistance of counsel. Claims of ineffective
assistance of counsel generally are not cognizable on direct appeal
unless counsel’s ineffectiveness conclusively appears on the
record. See United States v. James, 337 F.3d 387, 391 (4th Cir.
2003). Wheeler fails to make this showing. Accordingly, we
decline to consider this issue on direct appeal.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Wheeler’s conviction and sentence. Counsel’s motion to
withdraw is denied at this juncture. 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 move in this
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court 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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