United States v. Rodney Peters ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4747
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODNEY PETERS, a/k/a Rocco, a/k/a Rodney Strokes,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:11-cr-00003-JFM-27)
Submitted: April 4, 2013 Decided: April 10, 2013
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph M. Owens, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Ayn B. Ducao, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Peters pled guilty to one count of conspiracy
to possess with intent to distribute one kilogram or more of
heroin within 1000 feet of real property comprising of a public
housing authority or a public school, in violation of 21 U.S.C.
§§ 846, 860 (2006). On appeal, Peters contends his counsel was
ineffective for not fully conveying to him the terms of the
Government’s first plea offer. Because the record does not
conclusively show that counsel was ineffective, we will not
review the claim. Accordingly, we affirm.
The Sixth Amendment right to counsel during criminal
proceedings extends to the plea bargaining process. Missouri v.
Frye, 132 S. Ct. 1399, 1405 (2012). Criminal defendants are
entitled to effective assistance of counsel during that process.
Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). In order to
succeed in this case, Peters must show that counsel’s
performance was deficient and that there is a reasonable
probability that the deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
Claims of ineffective assistance of counsel are
normally presented to the court by way of a 28 U.S.C.A. § 2255(West Supp. 2012) motion. Such claims are cognizable on direct
appeal only when it conclusively appears on the record that
defense counsel did not provide effective assistance. United
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States v. Powell, 680 F.3d 350, 359 (4th Cir.), cert. denied,
133 S. Ct. 376 (2012).
The record shows that Peters and counsel disagreed on
key points. Peters contends he accepted the Government’s first
plea offer while counsel contends Peters rejected the offer.
Peters claims counsel told him the Government will give him a
better plea offer as it gets closer to trial. Counsel denies
telling Peters that and contends he told Peters the opposite.
Clearly, this is a case where the record could be
expanded. Without a full record it is impossible to make a
conclusive finding regarding counsel’s conduct. United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).
Accordingly, because the record does not conclusively
show that counsel was ineffective, we will not review this claim
at this time and will affirm the conviction and sentence. 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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