UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4181
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLYDE AUSTIN GRAY, JR., a/k/a Poochie,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:09-cr-00326-GBL-2)
Submitted: August 17, 2010 Decided: September 2, 2010
Before KING, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rebecca Sue Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Timothy D.
Belevetz, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clyde Gray appeals his conviction and 136 month
sentence for one count of conspiracy to commit bank fraud in
violation of 28 U.S.C. § 1349. The Government has moved to
dismiss, citing Gray’s waiver of appellate rights. We deny the
Government’s motion and affirm.
Gray argues on appeal: (1) that his apparently
untimely appeal should be allowed to go forward because his
trial counsel rendered ineffective assistance in failing to
advise Gray that he could file an appeal; and (2) that trial
counsel rendered ineffective assistance by failing to
investigate the case and object to two separate two-level
enhancements to Gray’s offense level.
With respect to Gray’s first contention, the
Government does not oppose the appeal going forward as timely.
Because the time limits for noting an appeal in a criminal case
are not jurisdictional, and may be waived by the Government, we
have jurisdiction to consider the remaining claim. See United
States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009) (“the non-
statutory time limits in Appellate Rule 4(b) do not affect
subject-matter jurisdiction”).
The Government urges the court to dismiss Gray’s
appeal as waived. While Gray did execute an otherwise valid
appellate waiver at the time he entered his guilty plea, claims
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of ineffective assistance of counsel are generally exempt from
the ambit of such waivers. See United States v. Johnson, 410
F.3d 137, 151 (4th Cir. 2005); United States v. Attar, 38 F.3d
727, 732 (4th Cir. 1994). Accordingly, we deny the motion to
dismiss because we do not agree that Gray has waived his right
to make this ineffective assistance of counsel claim on appeal.
That said, claims of ineffective assistance of counsel
are generally not cognizable on direct appeal. 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 28 U.S.C.A. § 2255 (West Supp. 2010) motion. Id. An
exception exists when the record conclusively establishes
ineffective assistance. United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999).
We have reviewed the record and conclude that
ineffective assistance of counsel is not present on its face.
The claim is therefore not cognizable on direct appeal.
Accordingly, we affirm the judgment of the district court. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not assist the decisional process.
AFFIRMED
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