UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4957
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRANCE ANDRE BUTLER, a/k/a Bronc,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:07-cr-00281-HMH-1)
Submitted: April 22, 2009 Decided: June 11, 2009
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Beattie B. Ashmore, PRICE, ASHMORE & BEASLEY, P.A., Greenville,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, A. Lance Crick, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrance Andre Butler appeals his conviction and
sentence for possession with intent to distribute crack cocaine,
possession of a firearm by a felon, and use of a firearm in
furtherance of a drug trafficking crime, in violation of 21
U.S.C. § 841(a)(1) (2006), 18 U.S.C. §§ 922(g), 924(c) (2006).
On appeal, Butler contends that his trial counsel was
ineffective, citing the entry of Butler’s guilty plea only five
weeks after his indictment, counsel’s failure to file a
suppression motion, counsel’s initial failure to review the
presentence investigation report (“PSR”) with Butler, counsel’s
failure to object to the PSR, and the rudimentary and imprecise
motion filed by Butler’s counsel to withdraw Butler’s guilty
plea. We affirm.
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 motion under 28 U.S.C.A. § 2255 (West Supp. 2008).
See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir.
1994). This rule affords counsel “adequate opportunity to
explain the reasons surrounding the action or inaction to which
[the defendant] takes exception.” United States v. DeFusco, 949
F.2d 114, 120 (4th Cir. 1991) (internal quotation marks and
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citation omitted). An exception to this general rule exists
when the record conclusively establishes counsel's ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999); King, 119 F.3d at 295.
In order to succeed on a claim of ineffective
assistance, defendant must show that: (1) counsel’s performance
fell below an objective standard of reasonableness; and
(2) counsel’s deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under
the first prong of Strickland, a defendant must demonstrate that
counsel’s performance was unreasonable under “prevailing
professional norms.” Id. at 688. This court “indulge[s] a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id.
To satisfy the second prong of Strickland in the
context of a conviction following a guilty plea, a defendant
“must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985). A reasonable probability is one sufficient to
“undermine confidence” in the outcome. Strickland, 466 U.S. at
694. Courts may bypass the performance prong and proceed
directly to the prejudice prong when it is easier to dispose of
the case for lack of prejudice. Id. at 697.
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The record in this case does not conclusively
demonstrate ineffective assistance by Butler’s counsel. That
Butler’s guilty plea was entered one month after his indictment
does not, in itself, demonstrate counsel’s ineffectiveness.
Similarly, the record does not reveal any grounds for a motion
to suppress, or counsel’s reasons for failing to file such a
motion. Though Butler challenges counsel’s failure to object to
the PSR, he does not identify any objectionable material. The
record also demonstrates that counsel reviewed the PSR with
Butler before the hearing at which Butler was sentenced.
Finally, Butler can show no prejudice from counsel’s skeletal
motion to withdraw Butler’s guilty plea. In addressing Butler’s
motion, the district court indicated that its concern was not
with the lack of authority supporting the motion but with the
fact that it contradicted Butler’s sworn assertions during the
plea colloquy.
As the record fails to conclusively establish any
ineffective assistance on counsel’s part, we decline to address
this claim on direct appeal. We accordingly affirm the judgment
of the district court. We dispense with oral argument as the
facts and legal contentions are adequately expressed in the
materials before us and further argument would not aid the
decisional process.
AFFIRMED
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