United States v. Michael Davis , 571 F. App'x 248 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4780
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL CORRAN DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:13-cr-00027-FL-1)
Submitted: May 12, 2014 Decided: May 16, 2014
Before MOTZ, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Corran Davis pleaded guilty to aggravated
sexual abuse, in violation of 18 U.S.C. § 2241(a)(1), (2)
(2012). The district court sentenced Davis to 168 months of
imprisonment and he now appeals. Appellate counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the Government committed prosecutorial
misconduct and whether trial counsel rendered ineffective
assistance. Davis was informed of his right to file a pro se
supplemental brief but has not done so. Finding no error, we
affirm.
Counsel first questions whether the Government
committed prosecutorial misconduct in delaying more than two
years between identifying Davis as a suspect in the offense and
obtaining an indictment, during which time Davis was
incarcerated on unrelated state charges. To succeed on a claim
of prosecutorial misconduct, a defendant must show that the
government’s “conduct prejudicially affected his substantial
rights so as to deprive him of a fair trial.” United States v.
Scheetz, 293 F.3d 175, 185 (4th Cir. 2002). With respect to
pre-indictment delay, “intentional delay by the government to
gain tactical advantage over the defendant, in addition to
substantial prejudice to the defendant, [violates] due process.”
Howell v. Barker, 904 F.2d 889, 894 (4th Cir. 1990) (citation
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omitted). We have thoroughly reviewed the record and the
relevant legal authorities and conclude that the Government did
not commit prosecutorial misconduct in delaying bringing an
indictment against Davis.
Appellate counsel next questions whether Davis’ trial
counsel rendered ineffective assistance for withdrawing his
motion to dismiss the indictment based on the pre-indictment
delay. To prove a claim of ineffective assistance of counsel, a
defendant must show (1) “that counsel’s performance was
deficient,” and (2) “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). Under the second prong of the test in the context of a
conviction following a guilty plea, a defendant can show
prejudice only by demonstrating “a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985).
We will address a claim of ineffective assistance on
direct appeal only if the lawyer’s ineffectiveness conclusively
appears on the record. United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). We find that ineffective assistance
does not conclusively appear on the record. We therefore
decline to address this claim on direct appeal.
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We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Davis, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Davis 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 Davis. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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