United States v. Kevin Dickerson , 586 F. App'x 126 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6913
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN NEVOYLE DICKERSON, a/k/a Hebe,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:10-cr-00011-SGW-RSB-1; 7:12-cv-80528-SGW-RSB)
Submitted: November 24, 2014 Decided: December 2, 2014
Before KEENAN, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kevin Nevoyle Dickerson, Appellant Pro Se. Donald Ray Wolthuis,
Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Nevoyle Dickerson, a federal prisoner, filed a
28 U.S.C. § 2255 (2012) motion contending, in relevant part,
that his trial counsel was unconstitutionally ineffective in
advising him to reject a plea offer to one count and instead
enter a “straight up” plea to two counts. We granted a
certificate of appealability on this claim and remanded his case
to the district court for an evidentiary hearing. United
States v. Dickerson, 546 F. App’x 211 (4th Cir. 2013) (No. 13–
6485). On remand, the district court found that counsel
properly advised Dickerson of his rights and Dickerson agreed
with counsel that preserving his appellate rights was valuable
enough to forgo entering a plea agreement conditioned upon a
waiver of appeal and habeas rights. Dickerson appeals for the
second time.
To succeed on his ineffective assistance claim,
Dickerson must show that: (1) counsel’s failures fell below an
objective standard of reasonableness, and (2) counsel’s
deficient performance was prejudicial. In Lafler v. Cooper, 132
S. Ct. 1376, 1384-85 (2012), the Supreme Court held that the
Sixth Amendment right to counsel applies to the plea bargaining
process, and prejudice occurs when, absent deficient advice, the
defendant would have accepted a plea that would have resulted in
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a less severe conviction, sentence, or both. In Missouri v.
Frye, 132 S. Ct. 1399, 1408 (2012), the Supreme Court held that
a component of the Sixth Amendment right to counsel in the plea
bargaining context is that counsel has a duty to communicate any
offers from the Government to his client. We review the
district court’s conclusions of law de novo and its findings of
fact for clear error. United States v. Nicholson, 611 F.3d 191,
205 (4th Cir. 2010).
After thoroughly reviewing the record and the
transcript of the evidentiary hearing, we find no reversible
error in the district court’s conclusion that counsel’s
determination in Dickerson’s case that the advantages of
pleading guilty without a plea agreement containing appellate
and collateral waivers outweighed the advantages of pleading
guilty pursuant to a plea agreement containing those waivers did
not render counsel’s representation ineffective.
Accordingly, we affirm the judgment of the district
court. We further deny Dickerson’s motion for appointment of
counsel and for a certificate of appealability. 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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