UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4260
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
THOMAS RAY, III,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:13-cr-00061-1)
Submitted: November 20, 2014 Decided: November 26, 2014
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant. Joseph Franklin Adams, OFFICE OF THE
UNITED STATES ATTORNEY, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Ray, III, appeals the district court’s criminal
judgment sentencing him to seventy-eight months’ imprisonment
pursuant to his guilty plea to one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (2012). Ray’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal, but
questioning whether (1) the district court erred in its criminal
history calculation, (2) the district court erred in not
granting Ray a variance from the Guidelines range,
(3) incarcerating Ray amounts to cruel and unusual punishment
because of his medical condition, (4) Ray’s trial counsel was
ineffective, and (5) Ray’s plea was the product of duress. * Ray
filed a pro se supplemental brief, reiterating counsel’s cruel
and unusual punishment claim, and asserting that his counsel was
ineffective for failing to get him transferred to another
facility in exchange for his guilty plea, and that his plea was
involuntary, as it was conditioned on a promise that he would be
transferred to another facility.
*
Ray’s counsel also alleges that Ray received inadequate
medical care while in custody, pending trial. Absent any link
to the validity of his plea or sentence, however, this claim
provides no ground for relief in this appeal.
2
In response, the Government moved to dismiss the
appeal, contending that Ray waived his right to appeal in his
plea agreement. We grant the motion in part and dismiss the
appeal in part. Ray’s claims of ineffective assistance of
counsel are outside the scope of the waiver; as to these claims,
we affirm.
Whether a defendant validly waived his right to appeal
is a question of law that we review de novo. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). Pursuant to a plea
agreement, a defendant may waive his appellate rights under 18
U.S.C. § 3742 (2012). United States v. Wiggins, 905 F.2d 51, 53
(4th Cir. 1990). We evaluate the validity of the waiver under
the totality of the circumstances. United States v. Copeland,
707 F.3d 522, 528 (4th Cir.), cert. denied, 134 S. Ct. 126
(2013). But we generally consider an appellate waiver to be
knowing and intelligent where the district court specifically
questioned the defendant regarding the waiver during the Rule 11
colloquy and the record indicates that the defendant understood
the significance of the waiver. Id.
Our review of the record reveals that Ray’s guilty
plea, and the accompanying waiver, were knowing and intelligent.
Contrary to any arguments on appeal, Ray confirmed that his plea
was voluntary and neither the product of duress nor
impermissible promises beyond the scope of the plea agreement.
3
Further, Ray affirmed that he understood the waiver, as
explained. We thus conclude that Ray validly waived his right
to appeal.
Even when a waiver is valid, however, it will preclude
appeal only of issues within the scope of the waiver. Blick,
408 F.3d at 168. Unless otherwise excepted, only challenges to
a sentence as “illegal,” like “challenges claiming a district
court exceeded its authority, claiming that a sentence was based
on a constitutionally impermissible factor such as race, or
claiming a post-plea violation of the right to counsel” will
survive a valid waiver. United States v. Thornsbury, 670 F.3d
532, 539 (4th Cir. 2012).
In his plea agreement, Ray waived his right to appeal
his conviction or sentence “on any ground whatsoever” so long as
his sentence did not exceed the Sentencing Guideline range
corresponding to an adjusted offense level of twenty-four, and
excepting claims of ineffective assistance of counsel. After
reviewing Ray’s claims, we thus conclude that only Ray’s
ineffective assistance claims are beyond the scope of the
waiver.
Finally, we decline to reach Ray’s claims of
ineffective assistance of counsel. Unless an attorney’s
ineffectiveness conclusively appears on the face of the record,
ineffective assistance claims are not generally addressed on
4
direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008). Instead, such claims should be raised in a motion
brought pursuant to 28 U.S.C. § 2255 (2012), in order to permit
sufficient development of the record. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because there
is no conclusive evidence of ineffective assistance of counsel
on the face of the record, we conclude that these claims should
be raised, if at all, in a § 2255 motion.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
To the extent Ray’s and his counsel’s claims are within the
scope of his valid appellate waiver, we grant the Government’s
motion to dismiss his appeal. We otherwise affirm the district
court’s judgment. This court requires that counsel inform Ray,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Ray 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. Counsel’s motion must
state that a copy thereof was served on Ray. We dispense with
oral argument because the facts and legal contentions are
5
adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
6