United States v. Wortham

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4005
CRAIG YAHTESH WORTHAM,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-96-194)
Submitted: December 17, 1998
Decided: January 5, 1999
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Gregory Ramage, Raleigh, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Robert E. Skiver, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Craig Yahtesh Wortham appeals from the district court's order
denying his motion for leave to file a belated notice of appeal from
the 295-month sentence imposed following his plea of guilty to
charges of conspiracy to distribute and possess with intent to distrib-
ute cocaine base, 21 U.S.C. § 846 (1994), and use of a firearm during
and in relation to a drug trafficking crime, 18 U.S.C.A. § 924(c)
(West Supp. 1998). Finding no error, we affirm.
On November 14, 1997, Wortham filed a motion for leave to file
a notice of appeal out of time. In this motion, Wortham asserts that
on the day he was sentenced, he requested that his attorney note an
appeal. He also asserts that he contacted his counsel a number of
times to inquire whether an appeal had been noted. Finding that it
lacked the authority to extend the appeal period, the district court
denied the motion. Wortham noted a timely appeal from this order.
The time periods for filing notices of appeal are governed by Fed.
R. App. P. 4. These periods are "mandatory and jurisdictional."
United States v. Schuchardt, 685 F.2d 901, 902 (4th Cir. 1982) (quot-
ing United States v. Robinson, 361 U.S. 220, 224 (1960)). Criminal
defendants must file their notices of appeal within ten days after the
entry of judgment. See Fed. R. App. P. 4(b). This time period may be
extended by a period of not more than thirty days upon a showing of
excusable neglect. See id.; United States v. Reyes, 759 F.2d 351, 353
(4th Cir. 1985). The district court filed its judgment and commitment
order on April 28, 1997. Wortham filed his motion for leave to file
a notice of appeal out of time on November 14, 1997, which is well
beyond the ten-day appeal period and the thirty-day excusable neglect
period. Therefore, the district court correctly determined that it lacked
the authority to extend the appeal period.
Wortham contends that because he requested that counsel note an
appeal and counsel did not, he was deprived of his Sixth Amendment
right to the effective assistance of counsel and should be afforded the
remedy provided the defendant in United States v. Peak, 992 F.2d 39,
42 (4th Cir. 1993) (ordering judgment reversed and case remanded
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with instructions to vacate the judgment of conviction and enter new
judgment from which an appeal may be taken). We review claims of
ineffective assistance of counsel on direct appeal"if and only if [the
ineffectiveness of counsel] ``conclusively appears' from the record."
See United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995). Other-
wise, such claims should be raised in the district court in a collateral
proceeding pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp.
1998), rather than in this court by direct appeal. See id. Because the
record does not conclusively support Wortham's claim of ineffective
assistance of counsel, we decline to address this issue.
Accordingly, we affirm the district court's order denying
Wortham's motion for leave to file his appeal out of time. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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