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 2007-07

United States v. Terry , 234 F. App'x 82 ( 2007 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4357
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY IVAN TERRY; SCAT, INCORPORATED,
Defendants - Appellants.
No. 06-4468
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY IVAN TERRY,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham & Greensboro. N. Carlton
Tilley, Jr., District Judge. (1:03-cr-00299-NCT-1)
Submitted: May 18, 2007                       Decided: July 11, 2007
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.
No. 06-4357, dismissed; No. 06-4468, affirmed by unpublished per
curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellants. Anna
Mills Wagoner, United States Attorney, Lisa B. Boggs, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these two appeals, Gary Ivan Terry challenges the
district court’s orders denying his motion for substitution of new
counsel, revoking his supervised release and imposing a seven-month
term of imprisonment followed by twenty-four months of supervised
release.   He contends that the district court lacked jurisdiction
over the proceedings, that the court erred by denying his motion
for substitution of new counsel, and that he was denied the
effective assistance of counsel.   We dismiss appeal No. 06-4357 as
interlocutory, and affirm the district court’s order in appeal No.
06-4468.
The Government moved to dismiss appeal No. 06-4357 as
interlocutory.   Terry noted this appeal from the district court’s
order denying his motion for substitution of counsel.   Because the
order from which the appeal was taken was not a final order, we
grant the Government’s motion and dismiss appeal No. 06-4357 for
lack of jurisdiction.   See United States v. Baxter,
    19 F.3d 155
    ,
156 (4th Cir. 1994) (“final judgment in a criminal case means
sentence”).
Terry first argues that his underlying conviction in
Missouri is invalid, and therefore the district court lacked
jurisdiction to revoke his supervised release.   An appeal from the
revocation of supervised release is not the proper forum in which
to challenge the validity of the underlying criminal conviction.
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United States v. Hofierka,
    83 F.3d 357
    , 363 (11th Cir. 1996); see
United States v. Torrez-Flores,
    624 F.2d 776
    , 780 (7th Cir. 1980).
Terry next contends that the district court erred by
denying his motion for substitution of counsel during the March 30,
2005   hearing.       Because      there   was    not    a   total    breakdown   in
communication between Terry and counsel, we find no abuse of
discretion by the district court in denying the motion. See United
States v. Johnson,
    114 F.3d 435
    , 443-44 (4th Cir. 1997) (holding
that   disagreement       with   counsel       concerning    trial    strategy    and
tactics    does     not   constitute       a    breakdown     in     communications
sufficient to warrant new counsel); United States v. Gallop,
    838 F.2d 105
    , 108 (4th Cir. 1988) (providing standard of review).
Terry also argues that he was denied the effective
assistance of counsel during the March 30, 2005 hearing. Claims of
ineffective assistance of counsel are not cognizable on direct
appeal    unless    the   record    conclusively        establishes     ineffective
assistance.       United States v. James,
    337 F.3d 387
    , 391 (4th Cir.
2003); United States v. Richardson,
    195 F.3d 192
    , 198 (4th Cir.
1999).    To allow for adequate development of the record, generally
such claims should be brought in a 28 U.S.C. § 2255 (2000) motion.
United States v. King,
    119 F.3d 290
    , 295 (4th Cir. 1997).                   Because
ineffective assistance of counsel does not clearly appear from the
record, we decline to address this issue.
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In   conclusion,   we   grant    the   Government’s   motion   to
dismiss appeal No. 06-4357 as interlocutory,          grant Terry’s motion
to expedite his appeal, deny his motion for appointment of counsel,
deny his motion for a stay of the district court proceedings
pending appeal, and affirm his conviction and sentence imposed for
violating his supervised release terms.             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.
No. 06-4357 DISMISSED
No. 06-4468 AFFIRMED
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