United States v. Lawrence Hawkins, Jr. ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4517
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAWRENCE LEO HAWKINS, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:04-cr-00060-RAJ-TEM-1)
Submitted: September 13, 2011 Decided: September 15, 2011
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Keith N. Hurley, Richmond, Virginia, for Appellant. William
David Muhr, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lawrence Leo Hawkins, Jr., was sentenced to ninety
days in prison following the revocation of his supervised
release. Hawkins’ counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that he has reviewed
the record and believes Hawkins’ appeal is frivolous, and asking
that he be allowed to withdraw from further representation of
Hawkins. Counsel nonetheless identifies two issues he believes
Hawkins may wish to raise on appeal: (1) that the district court
lacked jurisdiction to determine whether Hawkins violated his
probation; and (2) that Hawkins received ineffective assistance
of counsel during the revocation hearing. The Government has
declined to file a responsive brief and Hawkins has failed to
file a pro se supplemental brief despite receiving notice of his
right to do so. We deny counsel’s motion to withdraw and affirm
the district court’s judgment.
Although counsel suggests that the district court
lacked jurisdiction to consider Hawkins’ probation violations,
counsel correctly concedes that this assertion is meritless.
See 18 U.S.C. § 3565(a) (2006) (providing the district court
with authority to revoke probation and sentence a defendant to a
term of imprisonment if the defendant refuses to comply with
probation terms). Although counsel also suggests that Hawkins
may wish to raise an ineffective assistance of counsel claim on
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appeal, such claims are cognizable on direct appeal only if
counsel’s ineffectiveness conclusively appears on the record.
See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.
2006) (reiterating that this court will only address an
ineffective assistance of counsel claim on direct appeal “if the
lawyer's ineffectiveness conclusively appears from the record”).
We have reviewed the record pertaining to the district court’s
revocation of Hawkins’ supervised release and conclude that no
cognizable ineffective assistance of counsel claim conclusively
appears on the record.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Accordingly, we deny counsel’s motion to withdraw and affirm the
district court’s judgment. This court requires that counsel
inform Hawkins, in writing, of the right to petition the Supreme
Court of the United States for further review. If Hawkins
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may then move in
this court for leave to withdraw from representation. Counsel's
motion must state that a copy thereof was served on Hawkins. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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