United States v. Kalita ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4364
FRANK PHILLIP KALITA, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4386
FRANK PHILLIP KALITA, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-01-391-A)
Submitted: January 30, 2003
Decided: February 10, 2003
Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Frank W. Dunham, Jr., Federal Public Defender, Michael S. Nach-
manoff, Assistant Federal Public Defender, Alexandria, Virginia, for
2 UNITED STATES v. KALITA
Appellant. Michael Edward Rich, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In Appeal No. 02-4364, Frank Phillip Kalita, Jr., appeals from the
district court’s order denying his motion to file an untimely appeal.
In Appeal No. 02-4386, he appeals from the district court’s order par-
tially denying his motion for provision of documents at government
expense. Kalita’s counsel has filed a brief pursuant to Anders v. Cali-
fornia, 386 U.S. 738 (1967), asserting that there are no meritorious
issues for appeal. Kalita has filed a pro se supplemental brief chal-
lenging the validity of his guilty plea and his sentence, and asserting
claims of ineffective assistance of counsel. We affirm in both cases.
Kalita’s Judgment and Commitment order was entered on January
5, 2002; Kalita dated his notice of appeal March 16, 2002. The district
court determined that the notice of appeal was untimely filed and that
Kalita failed to show excusable neglect or good cause to warrant an
extension of the appeal period. We find no abuse of discretion in this
determination. See Fed. R. App. P. 4(b)(1)(A); United States v. Ray-
nor, 939 F.2d 191, 197 (4th Cir. 1991). Accordingly, we affirm the
district court’s denial of Kalita’s motion to file an untimely appeal.
In the second appeal, Kalita challenges the district court’s denial of
his motion for a copy of the government’s sentencing motion at gov-
ernment expense. Finding that Kalita failed make a sufficient showing
of his need for this document in relation to his appeal, the district
court denied the motion. We find no abuse of discretion in this deter-
mination, and therefore affirm. See 28 U.S.C. § 753(f) (2000); Jones
v. Superintendent, Va. State Farm, 460 F.2d 150, 152-53 (4th Cir.
1972).
UNITED STATES v. KALITA 3
In his pro se supplemental brief, Kalita raises challenges to the
validity of his guilty plea and his sentence. Because Kalita failed to
note a timely appeal from his criminal judgment, those issues are not
properly before this court. See Raynor, 939 F.2d at 197. Kalita also
asserts that counsel was ineffective with respect to his plea, his sen-
tencing, and the failure to file a timely notice of appeal. Claims of
ineffective assistance of counsel are not cognizable on direct appeal
unless counsel’s deficient performance plainly appears on the face of
the record. See United States v. King, 119 F.3d 290, 295 (4th Cir.
1997); United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991). Because the record does not plainly evidence that Kalita’s
counsel rendered ineffective assistance, these claims must be raised,
if at all, in a motion filed pursuant to 28 U.S.C. § 2255 (2000). See
United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
In accordance with Anders, we have examined the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm the district court’s orders denying Kalita’s motion to file
an untimely appeal, and denying, in part, his motion for copies of
documents at government expense. 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. 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