United States v. Davis , 31 F. App'x 288 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4097
DEVONNA MARCHELLE DAVIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-00-6)
Submitted: March 12, 2002
Decided: March 29. 2002
Before LUTTIG, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William E. Loose, WILLIAM E. LOOSE ATTORNEY AT LAW,
P.A., Asheville, North Carolina, for Appellant. Jerry Wayne Miller,
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. DAVIS
OPINION
PER CURIAM:
Devonna Marchelle Davis appeals her conviction and sentence
imposed by the district court following her guilty plea to conspiracy
to possess with intent to distribute cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), 846 (1994). Davis’ counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), asserting
there are no meritorious issues for appeal, but raising ineffective
assistance of counsel and prosecutorial misconduct as potential issues.
Davis has filed a pro se supplemental brief in which she contends that
she received ineffective assistance of counsel, that the district court
erred in determining her sentence, and that the indictment under
which she was convicted was tainted. Finding no reversible error, we
affirm.
On appeal, Davis contends she received ineffective assistance of
counsel, because her attorney failed to call a character witness at her
sentencing hearing and failed to obtain a downward departure pursu-
ant to U.S. Sentencing Guidelines Manual § 5K1.1 (1998) and Fed. R.
Crim. P. 35. Claims of ineffective assistance of counsel are generally
not cognizable on direct appeal. United States v. King, 119 F.3d 290,
295 (4th Cir. 1997). To allow for adequate development of the record,
claims of ineffective assistance of counsel must ordinarily be pursued
in a 28 U.S.C.A. § 2255 (West Supp. 2000) motion. United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception to this general
rule applies when the record conclusively establishes ineffective
assistance of counsel. King, 119 F.3d at 295. A review of the record
does not conclusively establish ineffective assistance of counsel, and
Davis’ ineffective assistance claims are therefore not cognizable in
this direct appeal.
Davis’ counsel next suggests Davis was the victim of prosecutorial
misconduct. Davis alleges no facts to support this contention. More-
over, we find no evidence of such misconduct in the record before us.
Davis next contends that the district court erred in determining her
sentence, and that her indictment was tainted. We find these claims
barred by Davis’ knowing and voluntary waiver of her appellate
UNITED STATES v. DAVIS 3
rights. See United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990);
Hall v. McKenzie, 575 F.2d 481 (4th Cir. 1978).
Pursuant to Anders, we have reviewed the record and find no error.
Accordingly, we affirm Davis’ conviction and sentence. This court
requires that counsel inform his client, in writing, of her right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes such a
petition would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED