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United States v. Davy , 55 F. App'x 151 ( 2003 )


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  •                           UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                                No. 02-4203
CURTIS R. DAVY,
Defendant-Appellant.

UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                                No. 02-4440
CURTIS R. DAVY,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Anderson.
G. Ross Anderson, Jr., District Judge.
(CR-01-420)
Submitted: January 16, 2003
Decided: January 24, 2003
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William H. Ehlies, II, Greenville, South Carolina, for Appellant.
Kevin Frank McDonald, OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee.
2                      UNITED STATES v. DAVY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In these consolidated appeals, Curtis R. Davy appeals: (1) his con-
viction and thirty-month sentence for possession of a firearm by a
convicted felon in violation of
    18 U.S.C. § 922
    (g)(1) (2000) (No. 02-
4203); and (2) the district court’s order denying his motion for recon-
sideration of previous orders denying his motion to suppress (No. 02-
4440). Davy’s attorney has filed a brief in accordance with Anders v.
California,
    386 U.S. 738
     (1967), raising two issues but stating that,
in his view, there are no meritorious grounds for appeal. Davy has
filed a pro se supplemental brief, discussing the same issues raised by
counsel and raising an additional claim of ineffective assistance of
counsel. Finding no reversible error, we affirm.
Davy first questions whether the district court complied with the
requirements of Fed. R. Crim. P. 11 in accepting his guilty plea.
Because Davy did not move to withdraw his guilty plea in the district
court, we review his challenges to the Rule 11 proceeding for plain
error. See United States v. Martinez,
    277 F.3d 517
    , 524-27 (4th Cir.),
cert. denied,
    123 S. Ct. 200
     (2002). We have reviewed the plea hear-
ing and the colloquy that the district court undertook with Davy and
find the court fully complied with Rule 11 and that Davy’s plea was
knowing and voluntary.
Davy next contends that the district court erred in denying his pre-
trial motion to suppress evidence obtained from a search of his vehi-
cle. We decline to review this claim, finding that Davy has waived his
right to assert that issue on appeal. Because Davy did not enter into
a conditional plea pursuant to Fed. R. Crim. P. 11(a)(2), he is now
foreclosed from raising antecedent nonjurisdictional errors on appeal,
including the denial of a motion to suppress evidence. See United
States v. Wiggins,
    905 F.2d 51
    , 52 (4th Cir. 1990).
UNITED STATES v. DAVY                         3
We also decline to review Davy’s claim that he received ineffective
assistance of counsel at his suppression hearing. Such claims are not
cognizable on direct appeal. See United States v. King,
    119 F.3d 290
    ,
295 (4th Cir. 1997). To allow for adequate development of the record,
the presumptive rule is that ineffective assistance of counsel claims
must be pursued in a
    28 U.S.C. § 2255
     (2000) motion. United States
v. Hoyle,
    33 F.3d 415
    , 418 (4th Cir. 1994). An exception exists when
the record conclusively establishes ineffective assistance of counsel.
King,
    119 F.3d at 295
    . A review of the record does not conclusively
establish that Davy received ineffective assistance of counsel.
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm
Davy’s conviction and sentence in No. 02-4203. We also affirm the
district court’s order denying Davy’s motion for reconsideration in
No. 02-4440. We deny Davy’s motion to expedite the appeals as
moot. This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED