United States v. Mayfield , 208 F. App'x 241 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6282
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANETTE LAVAINE MAYFIELD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:98-cr-00164-11; 5:01-cv-00083)
Submitted: November 22, 2006 Decided: December 7, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded in part; affirmed in part by unpublished per
curiam opinion.
Michael L. Waldman, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP,
Washington, D.C., for Appellant. Robert Jack Higdon, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina; Amy Elizabeth
Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danette Lavaine Mayfield appeals from the district
court’s order denying her 28 U.S.C. § 2255 (2000) motion. We
previously granted a certificate of appealability on two issues:
(1) whether the district court erred in dismissing as time barred
Mayfield’s claim that her attorney was ineffective for failing to
object to criminal history points added for her juvenile
convictions and (2) whether trial counsel was ineffective for
failing to move for a downward departure on the ground that
Mayfield’s criminal history category substantially over-represented
her criminal record. With regard to the first issue, the
Government concedes that the claim was incorrectly dismissed as
untimely. Thus, we vacate this portion of the district court’s
order and remand for consideration of the merits of the claim.
Turning to the second issue, after a review of the record and the
parties’ briefs, we conclude that Mayfield cannot show prejudice
from any error by her attorney in failing to move for a downward
departure. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(providing standard for establishing ineffective assistance).
Thus, we affirm the portion of the district court’s order rejecting
this claim. We grant the Government’s motion to file a
supplemental appendix. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
- 2 -
materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED IN PART;
AFFIRMED IN PART
- 3 -