United States v. Timothy Rankins , 357 F. App'x 737 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1935
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Timothy Duane Rankins, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 21, 2009
Filed: December 29, 2009
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Before BYE, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Timothy Rankins pleaded guilty to being a felon in possession of a firearm and
ammunition and was sentenced to 188 months in prison. Included in the plea
agreement was an appeal waiver. For reasons unrelated to this appeal, the District
Court1 resentenced Rankins to 100 months, a sentence within the advisory Sentencing
Guidelines range. His counsel has moved to withdraw and has filed a brief under
Anders v. California, 386 U.S. 738 (1967), suggesting that Rankins’s sentence is
unreasonable. Rankins has filed a pro se supplemental brief, arguing that his guilty
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
plea was involuntary because of ineffective assistance of counsel and prosecutorial
misconduct.
We have reviewed the record and conclude that any issue relating to the
reasonableness of Rankins’s sentence falls within the scope of the waiver, that
Rankins entered into the plea agreement knowingly and voluntarily, and that there is
no indication that a miscarriage of justice would result from enforcing the appeal
waiver. See United States v. Andis, 333 F.3d 886, 889–92 (8th Cir.) (en banc), cert.
denied, 540 U.S. 997 (2003). We therefore enforce the appeal waiver in this case.
See United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per
curiam) (enforcing appeal waiver in Anders case).
We also see no indication in the record of prosecutorial misconduct. In any
event, Rankins’s involuntary-plea claim is not cognizable on appeal because he did
not attempt to withdraw his plea in the District Court. See United States v. Villareal-
Amarillas, 454 F.3d 925, 932 (8th Cir. 2006), cert. denied, 549 U.S. 1137 (2007).
Further, any ineffective-assistance claim should be raised in a 28 U.S.C. § 2255
motion. See United States v. McAdory, 501 F.3d 868, 872–73 (8th Cir. 2007) (noting
that appellate court ordinarily defers ineffective-assistance claims to § 2255
proceedings); United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998) (declining
to consider claim that ineffective assistance of counsel rendered guilty plea
involuntary and suggesting that the issue should be raised in § 2255 motion).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues. We therefore dismiss the appeal based
upon the appeal waiver and grant counsel’s motion to withdraw, provided that counsel
inform Rankins about the procedures for filing pro se petitions for rehearing and for
certiorari.
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