UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4639
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY ALSTON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:01-cr-00001-H-1)
Submitted: January 29, 2009 Decided: February 17, 2009
Before NIEMEYER, MICHAEL, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carol Ann Bauer, Morganton, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Alston appeals the district court’s revocation
of his supervised release and imposition of a 60-month sentence.
On appeal, counsel for Alston filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal, but asking the court to review
whether Fed. R. Crim. P. 11 should have been applied to Alston’s
supervised release revocation hearing, whether Alston was
deprived of a preliminary hearing or his due process rights
under Fed. R. Crim. P. 32.1, and whether Alston received
ineffective assistance of counsel. Alston filed a pro se
supplemental brief in which he raised a number of additional
claims regarding ineffective assistance of counsel. Finding no
error, we affirm.
Alston claims that he was denied his due process
rights during his supervised release revocation hearing,
asserting the district court did not provide procedural
safeguards pursuant to Rule 11 or satisfy the requirements of
Rule 32.1. However, Rule 11 is not applicable to revocation
hearings; given the “flexible, informal nature of the revocation
hearing . . . the full panoply of procedural safeguards
associated with a criminal trial” are not required. Black v.
Romano, 471 U.S. 606, 613 (1985). While Alston also contends
the district court violated Rule 32.1, there is no evidence in
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the record to support this claim. Alston was provided with
written notice of the alleged violations, a hearing at which
witnesses were called and made available for cross-examination,
and the opportunity to make a statement and present information
in his defense. Alston was also represented by counsel and
permitted to subpoena witnesses. While Alston contends that he
was denied a preliminary hearing, the record clearly indicates
that Alston received a preliminary hearing on May 20, 2008, at
which time the magistrate judge ordered that Alston remain in
custody. Because there is no evidence in the record
demonstrating that the procedural requirements pursuant to Rule
32.1 were not satisfied, we find this claim is without merit.
Alston next claims that he received ineffective
assistance of counsel. However, unless the record conclusively
demonstrates ineffective assistance, such claims should be
raised in a 28 U.S.C. § 2255 (2006) motion rather than on direct
appeal. See United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Claims of ineffective assistance of counsel cannot be
fairly adjudicated on direct appeal when the appellant has not
raised the issue before the district court and there is no
statement from counsel on the record. United States v. DeFusco,
949 F.2d 114, 120-21 (4th Cir. 1991). Because the existing
record fails to conclusively support any of Alston’s allegations
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of ineffective assistance, such claims must be raised as part of
a § 2255 motion rather than on direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform her 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 such a petition would be frivolous,
then counsel may move in this 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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