United States v. Michael Toal

United States Court of Appeals
For the Eighth Circuit
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No. 12-2031
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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Michael D. Toal

lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 22, 2012
Filed: December 3, 2012
[Unpublished]
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Before MURPHY, ARNOLD, and SMITH, Circuit Judges.
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PER CURIAM.

Michael D. Toal directly appeals after he pled guilty to production of child
pornography in violation of 18 U.S.C. § 2251(a) and the district court1 sentenced him

1
The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Judge for the Western District of Missouri.
to 300 months in prison and 15 years of supervised release. Toal’s counsel has moved
to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
raising numerous issues on Toal’s behalf. Toal has filed a supplemental brief raising
essentially the same issues.

Toal pled guilty pursuant to a written plea agreement containing a waiver of his
right to appeal his sentence, directly or collaterally, except for claims of ineffective
assistance of counsel, prosecutorial misconduct, or an illegal sentence. We note that
an ineffective-assistance claim asserted on appeal is not barred by the appeal waiver,
but we decline to consider it on direct appeal. See United States v. McAdory, 501
F.3d 868, 872-73 (8th Cir. 2007) (appellate court ordinarily defers ineffective-
assistance claims to 28 U.S.C. § 2255 proceedings). As to the remaining issues
asserted on appeal, we conclude that the appeal waiver is enforceable. See United
States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (discussing
enforcement of appeal waivers).

Finally, having reviewed the record independently pursuant to Penson v. Ohio,
488 U.S. 75 (1988), we find no nonfrivolous issues for appeal. Accordingly, we
decline to consider Toal’s ineffective-assistance claim on direct appeal, we dismiss
the appeal based on the appeal waiver, and we grant counsel’s motion to withdraw,
subject to counsel informing appellant about procedures for seeking rehearing or filing
a petition for certiorari.
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