United States v. Nancy E. Queen ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2796
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Nancy E. Queen, * Western District of Missouri.
*
Appellant. * [UNPUBLISHED]
___________
Submitted: March 4, 2004
Filed: March 25, 2004
___________
Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Nancy Queen pleaded guilty to conspiring to possess and distribute
pseudoephedrine, having reasonable cause to believe it would be used to manufacture
methamphetamine, in violation of 21 U.S.C. §§ 841(c)(2) and 846. The district court1
departed downward from the Guidelines and sentenced Queen to time served and 3
years supervised release. On appeal, Queen’s counsel has moved to withdraw, and
has filed a brief under Anders v. California, 386 U.S. 738 (1967). In lengthy pro se
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
submissions, Queen contends she received ineffective assistance of counsel because
her indictment would have been dismissed outright under the Interstate Agreement
on Detainers if her counsel had so moved. Queen seeks to supplement the record
with exhibits in which she reiterates her ineffective-assistance claim. The
government has moved to dismiss the appeal based on an appeal waiver in the plea
agreement.
We find that Queen’s appeal should not be dismissed based on the appeal
waiver, because the waiver in the plea agreement specifically permits Queen to
challenge her conviction on ineffective-assistance grounds. To the extent Ms. Queen
challenges her conviction on grounds other than ineffective assistance of counsel, we
conclude that those arguments are waived by the plea agreement. Cf. United States
v. Andis, 333 F.3d 886, 889-91 (8th Cir.) (en banc) (appellate court may dismiss
appeal if it falls within scope of appeal waiver), cert. denied, 124 S. Ct. 501 (2003).
We decline to address Queen’s ineffective-assistance claim, which should be raised--
if at all--in collateral proceedings under 28 U.S.C. § 2255. See United States v.
Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003) (ineffective-assistance claims should
be deferred to § 2255 proceedings unless miscarriage of justice would obviously
result, or outcome would be inconsistent with substantial justice); United States v.
Cain, 134 F.3d 1345, 1352 (8th Cir. 1998) (claim that ineffective assistance of
counsel tainted defendant’s guilty plea should be raised in § 2255 motion and not on
direct appeal); cf. United States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999)
(prisoner on supervised release is “in custody” for purposes of filing § 2255 motion).
We have carefully reviewed the record independently under Penson v. Ohio,
488 U.S. 75 (1988), and have found no nonfrivolous issues. Accordingly, we grant
counsel’s motion to withdraw, and we affirm. We deny all other pending motions,
including the petition for a writ of mandamus.
______________________________
-2-