UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4678
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY JAMIE LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-00481-TLW-10)
Submitted: August 26, 2009 Decided: December 4, 2009
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John M. Ervin, III, ERVIN LAW OFFICE, Darlington, South
Carolina, for Appellant. Arthur Bradley Parham, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Jamie Lewis pled guilty to conspiracy to possess
cocaine base with the intent to distribute, in violation of 21
U.S.C.A. § 841(a)(1) (West Supp. 2009) and 21 U.S.C. § 846
(2006). The district court sentenced Lewis to 120 months’
imprisonment, followed by five years of supervised release.
His counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), claiming there are no meritorious issues for
review but questioning whether the district court complied with
Fed. R. Crim. P. 11 in accepting Lewis’s guilty plea. Lewis’s
pro se supplemental brief presents the additional issues of
whether his counsel provided ineffective assistance by
pressuring him to plead guilty, whether the search warrant
violated the Fourth Amendment, whether the Government committed
prosecutorial misconduct by refusing to share discovery with the
defense before trial, and whether Lewis was denied a proper
arraignment. Lewis also moves this court for appointment of a
new attorney.
Because Lewis did not move in the district court to
withdraw his guilty plea or otherwise raise Rule 11 error, this
court’s review is for plain error. See United States v. Vonn,
535 U.S. 55, 59 (2002). Thus, it is Lewis’s burden to show an
error that was plain and affected his substantial rights, and
show that this court should exercise its discretion to notice
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the error. United States v. Martinez, 277 F.3d 517, 529 (4th
Cir. 2002). The district court, through colloquy with Lewis,
informed him of the nature of the charge against him, the
mandatory minimum penalty, the maximum possible penalty, and of
the various rights he was relinquishing by pleading guilty. In
addition, the district court determined there was a factual
basis for the plea. Our review of the transcript reveals full
compliance with the requirements of Fed. R. Crim. P. 11, and we
conclude that Lewis pled guilty knowingly and voluntarily.
Turning to Lewis’s claim that he received ineffective
assistance of counsel, such claims are generally not cognizable
on direct appeal. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Instead, ineffective assistance claims are
appropriately brought pursuant to 28 U.S.C.A. § 2255 (West Supp.
2009) to allow for adequate development of the factual record.
See King, 119 F.3d at 295. A defendant may raise an ineffective
counsel claim on direct appeal only if the record conclusively
demonstrates that defense counsel did not provide effective
representation. United States v. Baldovinos, 434 F.3d 233, 239
(4th Cir. 2006). To prove ineffective assistance a defendant
must show both “that counsel’s representation fell below an
objective standard of reasonableness” and “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
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Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) (noting
that certain types of ineffective assistance warrant a
presumption of prejudice). We have reviewed the record, and it
does not conclusively demonstrate that defense counsel did not
provide effective representation. Accordingly, we decline to
address this claim on direct appeal.
Lewis raises additional issues in his pro se brief
relating to the search warrant, discovery, and his arraignment.
However, a valid guilty plea waives all nonjurisdictional
antecedent defects, including constitutional challenges to the
pretrial proceedings. See Menna v. New York, 423 U.S. 61, 62-63
n.2 (1975); Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Lewis’s intelligent and voluntary guilty plea established his
factual guilt, rendering any constitutional violations in the
pretrial proceedings irrelevant.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Lewis’s conviction and sentence, and deny
his motion for appointment of new counsel. This court requires
that counsel inform Lewis, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Lewis requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
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Counsel’s motion must state that a copy thereof was served on
Lewis.
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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