[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
NOV 08, 2010
No. 10-10509 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 3:09-cr-00077-MCR-MD-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
DONALD WAYNE BAXLEY,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(November 8, 2010)
Before BLACK, WILSON and FAY, Circuit Judges.
PER CURIAM:
Donald Wayne Baxley, pro se, appeals his conviction on one count of sale
of firearms to a convicted felon, in violation of 18 U.S.C. §§ 922(d)(1), 924(a)(2),
following his unconditional guilty plea. He alleges that his conduct was the
product of entrapment by law enforcement, and that he received ineffective
assistance of counsel when original counsel allegedly coerced him into pleading
guilty. The government responds that neither of these claims is cognizable on
direct appeal. For the reasons set forth below, we affirm.
I.
In May 2009, agents with the Bureau of Alcohol, Tobacco, Firearms, and
Explosives determined that Baxley had placed six classified advertisements for
firearms in a local newspaper. An agent arranged for a confidential informant (CI)
to contact Baxley and inquire about purchasing one of the shotguns he had
advertised. When the CI told Baxley that she could not purchase firearms from a
licensed dealer because she had a prior felony conviction, Baxley responded that
he did “not have a problem with that at all.” At their subsequent meeting, Baxley
displayed an additional weapon, which he had made by sawing the barrel off of a
shotgun. The CI purchased both weapons.
Baxley was charged with knowingly selling two firearms to a convicted
felon. He entered, through original counsel, a notice of intent to present
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entrapment evidence, but he subsequently pled guilty to the charge. The plea
agreement did not preserve the right to appeal any matters that could affect the
issue of guilt. At the change-of-plea hearing, Baxley acknowledged that his guilty
plea would waive any and all defenses, including an entrapment defense, and
would forever resolve the issue of his guilt.
Baxley was represented by new counsel at the sentencing hearing. He was
sentenced to 18 months’ imprisonment, to be served consecutively to the unrelated
state-court sentence he was then serving. Baxley filed a notice of appeal pro se
and moved the district court for leave to proceed pro se on appeal. Following an
ex parte hearing, attended only by Baxley himself and new counsel, the court
granted his motion for leave to proceed pro se.
II.
“A defendant’s plea of guilty, made knowingly, voluntarily, and with the
benefit of competent counsel, waives all nonjurisdictional defects in that
defendant’s court proceedings.” United States v. Yunis, 723 F.2d 795, 796 (11th
Cir. 1984) (emphasis removed). On direct appeal, we strongly presume that the
defendant’s statements at the guilty-plea colloquy were truthful, including his
admission of guilt and his representation that he understood the consequences of
his plea. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Here,
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Baxley never moved in the district court to withdraw his plea. Apart from the
ineffective-assistance issue, which, as discussed below, is unreviewable, he has
raised no challenge on appeal to the validity of his guilty plea. Accordingly, his
guilty plea is presumed valid, and he waived the entrapment and wiretap defenses
by entering it. As such, these claims are not cognizable on appeal.
III.
We generally will not consider an ineffective-assistance claim on direct
appeal where the district court did not entertain the claim or develop a factual
record. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). Instead, a
28 U.S.C. § 2255 motion to vacate is the preferred method for asserting such a
claim. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 1694,
155 L.Ed.2d 714 (2003). Here, the district court did not develop a factual record
with respect to original counsel’s alleged ineffectiveness. Baxley never moved,
pro se or through new counsel, to withdraw his guilty plea based on alleged
coercion by original counsel. The allegation was not raised until his post-
judgment motion to proceed pro se on appeal, and then only in an ex parte hearing
at which original counsel did not appear and no evidence was adduced.
Accordingly, the claim is unreviewable on direct appeal.
For the foregoing reasons, we affirm Baxley’s conviction.
AFFIRMED.
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