[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14434 MAY 5, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00052-CR-LSC-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH DEWAYNE SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 5, 2006)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Appellant pled guilty pursuant to a plea agreement and was convicted on
both counts of a two-count indictment: Count One, possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1); Count Two, possession with
intent to distribute five grams or more of a mixture or substance containing a
detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1). After the
district court sentenced him to prison for a total of 292 months, he lodged this
appeal. He asks that we vacate his convictions, and direct the reinstatement of his
plea of not guilty, on the ground that he received ineffective assistance of counsel
prior to and at the time he accepted the plea agreement and pled guilty.
Except in rare instances where counsel’s ineffectiveness is manifest on the
cold record, we do not consider an ineffective assistance of counsel claim in the
direct appeal of a judgment of conviction. If appellant wishes to pursue this claim,
he should move the district court for relief under 28 U.S.C. § 2255. A § 2255
proceeding will provide a forum for taking evidence concerning counsel’s
performance, including the advice he gave appellant in connection with his plea
agreement with the Government.
Since the only issue appellant raises in this appeal is whether counsel’s
performance passed Sixth Amendment muster – that is, he does not otherwise
attack his convictions or sentences – the judgment of the district court is
AFFIRMED.
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