United States v. Danta Roberts

                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4643


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DANTA OMAR ROBERTS,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:15-cr-00083-HEH-RCY-1; 3:16-
cv-00793-HEH-RCY)


Submitted: June 21, 2021                                          Decided: July 2, 2021


Before MOTZ, RICHARDSON, and RUSHING, Circuit Judges.


Affirmed as modified by unpublished per curiam opinion.


Peter L. Goldman, SABOURA, GOLDMAN & COLOMBO, P.C., Alexandria, Virginia,
for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia,
Olivia L. Norman, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Danta Omar Roberts pled guilty to possession with intent to distribute heroin and

was sentenced to 200 months’ imprisonment. He did not appeal. He subsequently filed a

28 U.S.C. § 2255 motion alleging several claims of ineffective assistance of counsel. The

district court granted relief on Roberts’ claim that defense counsel provided ineffective

assistance by failing to file a notice of appeal, see United States v. Peak, 992 F.2d 39, 42

(4th Cir. 1993) (holding that counsel’s failure to file notice of appeal when requested to do

so is per se ineffective assistance and the remedy is to vacate and reimpose the criminal

judgment to permit appeal period to run again), and denied relief on his remaining claims

on the ground that they were without merit. The court vacated the criminal judgment,

entered an amended judgment reimposing the same sentence, and allowed Roberts to note

an appeal. Roberts now appeals the district court’s order denying in part his § 2255 motion

and the amended judgment.

       To the extent that Roberts seeks to challenge the district court’s § 2255 order

denying his non-Peak claims on the merits, he must obtain a certificate of appealability

under 28 U.S.C. § 2255. 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability will not

issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). When the district court denies relief on procedural grounds, the prisoner

must demonstrate both that the dispositive procedural ruling is debatable, and that the

motion states a debatable claim of the denial of a constitutional right. Slack v. McDaniel,

529 U.S. 473, 484-85 (2000). Because Roberts’ remaining habeas claims could have been

raised in Roberts’ criminal appeal or a subsequent § 2255 motion, the district court should

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not have dismissed them with prejudice. See In re Goddard, 170 F.3d 435, 437 (4th Cir.

1999). Therefore, we grant a certificate of appealability as to those claims, and affirm as

modified to reflect dismissal without prejudice.

       Turning next to Roberts’ appeal from his amended criminal judgment, we note that

claims of ineffective assistance of counsel generally are not cognizable on direct appeal.

United States v. Maynes, 880 F.3d 110, 113 n.1 (4th Cir. 2018). Instead, to permit adequate

development of the record, such claims should be raised in a 28 U.S.C. § 2255 motion.

United States v. Baptiste, 596 F.3d 215, 216 n.1 (4th Cir. 2010). An exception exists,

however, where “an attorney’s ineffectiveness conclusively appears on the face of the

record.” United States v. Faulls, 821 F.3d 502, 507 (4th Cir. 2016). Upon review, we

conclude that the record does not conclusively demonstrate any deficiencies in counsel’s

representation, and therefore this claim is not cognizable on appeal.

       Accordingly, we affirm the district court’s amended criminal judgment and we

affirm the district court’s dismissal of Roberts’ § 2255 claims as modified to reflect that

the dismissal is without prejudice. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                              AFFIRMED AS MODIFIED




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