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 2013-12

United States v. Daniel Bifield , 547 F. App'x 273 ( 2013 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4428
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL EUGENE BIFIELD, a/k/a Diamond Dan,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Cameron McGowan Currie, Senior
District Judge. (3:12-cr-00430-CMC-1)
Submitted:   November 21, 2013            Decided:   December 3, 2013
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William W. Watkins, Sr., WILLIAM W. WATKINS, PA, Columbia, South
Carolina, for Appellant.     William N. Nettles, United States
Attorney,   Julius  N.   Richardson,   Assistant  United  States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Bifield pled guilty, pursuant to a written plea
agreement, to conspiracy to engage in a pattern of racketeering
activity,      in     violation        of    18    U.S.C.       § 1962(d)      (2012).           The
district court sentenced Bifield to 210 months’ imprisonment.
Bifield entered his plea with his wife, Lisa, who was a co-
defendant in his case.                  Lisa’s plea was contingent on Bifield
pleading       guilty.        Bifield         initially         sought    to    withdraw         his
guilty     plea      on    the    ground          that    the    Government         engaged       in
prosecutorial misconduct by not informing him that Lisa’s plea
required       cooperation        with       the       Government      and     that    she       had
already     given         statements         to    the     Government.             After    being
informed of the consequences if his motion to retract his guilty
plea   were     granted,         and    being      warned       that     withdrawal        of    his
motion    to    retract       his      plea       would    waive    his      claims,       Bifield
withdrew       his    motion.           On     appeal,      Bifield       argues      that       the
Government          committed       prosecutorial            misconduct,           that     as     a
consequence his plea was not knowing and voluntary, and that his
counsel was ineffective.                We affirm.
We    conclude          that,      by      withdrawing        his    motion       to
withdraw his guilty plea, Bifield has waived his claims that the
Government committed prosecutorial misconduct and that his plea
was not knowing and voluntary.                         United States v. Rodriguez,
    311 F.3d 435
    , 437 (1st Cir. 2002) (“A party who identifies an issue,
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and then explicitly withdraws it, has waived the issue.”); see
also United States v. Guzman,
    707 F.3d 938
    , 941 n.2 (8th Cir.
2013)   (noting      that      appellant   waived      argument        that     Government
breached plea agreement by withdrawing motion to withdraw guilty
plea); United States v. Chapman, 209 F. App’x 253, 267 n.4 (4th
Cir. 2006) (noting that “withdrawal of [an] objection amounts to
a waiver of any complaint [regarding the action to which the
objection was made], precluding us from considering the issue
even under plain error review”) (argued but unpublished).                                  An
appellant     is    precluded      from    resurrecting       a    waived        issue    on
appeal.     See
    Rodriguez, 311 F.3d at 437
    .               Such waiver “is to be
distinguished from a situation in which a party fails to make a
timely assertion of a right -- what courts typically call a
‘forfeiture,’”
    id. (quoting United 
    States v. Olano,
    507 U.S. 725
    , 733 (1993)), which may be reviewed on appeal for plain
error, see
    Olano, 507 U.S. at 733-34
    .
Although          Bifield     waived       his       claims         regarding
prosecutorial misconduct and the voluntariness of his plea, he
has   not   waived    his      ineffective      assistance        of    counsel        claim.
However,     claims       of    ineffective      assistance        of        counsel     “are
generally not cognizable on direct appeal.”                        United States v.
Benton,
    523 F.3d 424
    ,   435    (4th   Cir.    2008);         see    also     United
States v. King,
    119 F.3d 290
    , 295 (4th Cir. 1997) (noting same).
Instead,    to     allow    for   adequate      development       of     the    record,    a
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defendant     must     ordinarily    bring      his    ineffective        assistance
claims in a motion pursuant to 28 U.S.C. § 2255.                      See
    King, 119 F.3d at 295
    .      We may entertain such claims on direct appeal only
if the record conclusively shows that defense counsel did not
provide effective representation.               Id.; see also United States
v. Richardson,
    195 F.3d 192
    , 198 (4th Cir. 1999); cf. Strickland
v. Washington,
    466 U.S. 668
    , 687-94 (1984) (explaining standard
for    ineffective      assistance   of       counsel).          We   conclude    that
Bifield has not shown that the record conclusively demonstrates
counsel’s ineffectiveness.
Accordingly, we affirm the district court’s judgment.
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
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