United States v. Kenneth Ashe

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4992
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH ASHE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:12-cr-00033-MR-DLH-2)
Submitted: August 28, 2014 Decided: September 9, 2014
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carol A. Bauer, Morganton, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, William M. Miller,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Kenneth Ashe
pled guilty to conspiracy to possess with intent to distribute a
quantity of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2012). The district court sentenced Ashe to
eighty-seven months’ imprisonment. Ashe timely appealed.
Ashe’s sole argument on appeal is that he was denied
effective assistance of counsel because none of his three
attorneys moved for a competency evaluation, see 18 U.S.C.
§ 4241(a) (2012), prior to seeking to withdraw from
representation. This, according to Ashe, resulted in a
violation of his Sixth Amendment right to counsel, as he
ultimately proceeded pro se at sentencing. *
Except where the record conclusively establishes
counsel’s ineffective assistance, such claims generally are not
cognizable on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008). Rather, to allow for adequate
development of the record, ineffective assistance of counsel
claims are usually more appropriately pursued in a 28 U.S.C.
§ 2255 (2012) motion. United States v. Baptiste, 596 F.3d 214,
216 n.1 (4th Cir. 2010).
*
Ashe does not appeal the magistrate judge’s decision to
grant his request to represent himself pro se or assert that he
was incompetent to make such a request.
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On this record, we cannot conclusively say that any of
Ashe’s attorneys were ineffective in failing to move the court
for an evaluation of Ashe’s competency prior to seeking to
withdraw from representation. See generally United States v.
Banks, 482 F.3d 733, 743 (4th Cir. 2007) (opining that the duty
to hold a competency hearing should not “be expanded to require
such a hearing any time that a defendant engages in disruptive
tactics or pursues a frivolous legal strategy”). We therefore
decline to consider this argument on appeal. Accordingly, we
affirm the district court’s criminal judgment. We deny as moot
Ashe’s pro se motion for bail or release pending appeal. 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
3