[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 17, 2008
No. 07-15819 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00149-CR-T-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WENDELL LAMAR WILSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(September 17, 2008)
Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:
Wendell Wilson appeals his conviction for carrying a firearm during a drug
trafficking crime, in violation of 18 U.S.C. § 924(c), on the grounds of ineffective
assistance of counsel.1 Upon review, we decline to review Wilson’s ineffective-
assistance-of-counsel claim and we affirm Wilson’s conviction.
Wilson pleaded guilty to violating § 924(c) pursuant to a written plea
agreement. The terms of the agreement included a waiver of appeal in which
Wilson agreed not to challenge his sentence on direct appeal or in a collateral
attack except in the case of ineffective assistance of counsel. At the change-of-plea
hearing, the court confirmed that Wilson was satisfied with counsel and understood
the plea agreement. Finding that the plea was made knowingly and voluntarily, the
court adjudicated Wilson guilty. Wilson was sentenced to five years’
imprisonment, the mandatory minimum sentence for his offense.
Wilson did not file a direct appeal, but instead filed a motion to vacate his
sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel for,
inter alia, counsel’s failure to file a direct appeal. The court granted the motion in
part and re-entered the judgment with the same sentence, thus renewing the time in
which to file a direct appeal. Wilson then filed his direct appeal, which is before us
now. On appeal, Wilson argues that he is entitled to remand because his trial
1
Wilson does not challenge the validity of the entry of his plea of guilt, his plea agreement,
or the reasonableness of his sentence. Therefore, he has abandoned any arguments with respect to
those issues. See United States v. Blasco, 702 F.2d 1315, 1332 n.28 (11th Cir. 1983). Wilson also
did not seek review of the denial of his other § 2255 claims and has not obtained a certificate of
appealability as required by 28 U.S.C. § 2253(c). See United States v. Futch, 518 F.3d 887 (11th
Cir. 2008), petition for cert. filed, (No. 07-11264) (Jun. 2, 2008). Thus, on appeal, our review does
not include review of the denial of Wilson’s remaining § 2255 claims.
2
counsel rendered ineffective assistance by (1) failing to file a motion to dismiss the
indictment against him due to violation of the Speedy Trial Clause of the Sixth
Amendment; and (2) failing to spend adequate time in preparation of his defense
due to his busy trial schedule.
Both this court and the Supreme Court have indicated that it is preferable to
decide claims of ineffective assistance of counsel on collateral review. Massaro v.
United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003);
United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). However, we are
not precluded from reviewing ineffective-assistance-of-counsel claims as part of a
direct criminal appeal where the record is sufficiently developed. Massaro, 538
U.S. at 504; Bender, 290 F.3d 1284.
“Whether a criminal defendant’s trial counsel was ineffective is a mixed
question of law and fact, subject to de novo review.” Bender, 290 F.3d at 1284. A
claim of ineffective assistance will not be sustained unless the defendant satisfies
two prongs; the defendant must show both that counsel’s performance “fell below
an objective standard of reasonableness” and that the defendant was prejudiced as a
result. Strickland v. Washington, 466 U.S. 668, 687-88, 690, 694, 104 S.Ct. 2052,
2064, 2066, 2068, 80 L.Ed.2d 674 (1984).
This court has held that the entry of a plea waives all non-jurisdictional
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defects occurring prior to the time of the plea, including violations of the
defendant’s rights to a speedy trial. United States v. Yunis, 723 F.2d 795, 795
(11th Cir. 1984) (holding that guilty plea waived all non-jurisdictional defects
including right to speedy trial); United States v. Saldana, 505 F.2d 628, 628 (5th
Cir.1974) 2 (holding that guilty plea waived Sixth Amendment right to speedy trial).
Because the district court did not address the claims of ineffective assistance
of counsel during Wilson’s prosecution or the litigation of his 28 U.S.C. § 2255
motion, and the record on appeal does not establish whether or not counsel’s
performance was deficient or prejudiced Wilson, review of the claims is not
appropriate at this time. To the extent Wilson challenges his conviction on
constitutional speedy trial grounds, the entry of his guilty plea waived any
violation of his right to a speedy trial. Accordingly, we AFFIRM Wilson’s
conviction.
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the former Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.
4