United States v. Cecil Brimmage ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3742
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Cecil Brimmage, * Eastern District of Missouri.
*
Appellant. * [UNPUBLISHED]
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Submitted: July 24, 2001
Filed: August 16, 2001
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Before WOLLMAN, Chief Judge, LOKEN, and HANSEN, Circuit Judges.
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PER CURIAM.
After Cecil Brimmage pleaded guilty to conspiring to possess heroin with intent
to distribute, in violation of 21 U.S.C. § 846, the district court1 sentenced him to 13
months imprisonment and 3 years supervised release. On appeal, Brimmage’s counsel
has filed a brief and moved to withdraw under Anders v. California, 386 U.S. 738(1967), and Brimmage has filed a pro se supplemental brief requesting substitute
counsel.
1
The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
the Eastern District of Missouri.
We reject each of the issues raised on appeal. Brimmage’s failure to attempt to
withdraw his guilty plea below precludes him from challenging its voluntariness in this
appeal, see United States v. Bond, 135 F.3d 1247, 1249 (8th Cir.) (per curiam) (this
court need not address plea-withdrawal claim which defendant did not present to
district court), cert. denied, 524 U.S. 961 (1998); United States v. Murphy, 899 F.2d
714, 716 (8th Cir. 1990) (claim of involuntary guilty plea “first must be presented to
the district court and [is] not cognizable on direct appeal”); his intertwined
ineffective-assistance claim should be presented in postconviction proceedings, see
United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998) (claim that ineffective
assistance of counsel invalidated defendant’s guilty plea should be raised in 28 U.S.C.
§ 2255 motion, not direct appeal); and the issue of the voluntariness of Brimmage’s
statement to police was foreclosed by his unconditional guilty plea, see United States
v. Stewart, 972 F.2d 216, 217-18 (8th Cir. 1992) (defendant who unconditionally
pleads guilty waives all nonjurisdictional defenses).
We have reviewed the record independently under Penson v. Ohio, 488 U.S. 75(1988), and we have found no nonfrivolous issues for appeal. Accordingly, we affirm
the judgment of the district court, grant Brimmage’s counsel’s motion to withdraw, and
deny Brimmage’s request for new counsel.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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