United States v. Clyde Love

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4922
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLYDE EDWARD LOVE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00121-F-1)
Submitted: May 27, 2011 Decided: July 13, 2011
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary J. Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant. George Edward Bell Holding, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clyde Edward Love was indicted on one count of assault
with a dangerous weapon with the intent to do bodily harm, in
violation of 18 U.S.C. § 113(a)(3) (2006) (Count One), and one
count of assault by striking another person, in violation of 18
U.S.C. § 113(a)(4) (2006) (Count Two). After a jury trial, Love
was acquitted of Count One and convicted of Count Two. Love’s
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting there are no meritorious arguments
for appeal, but raising for the court’s consideration several
issues at Love’s request: (1) whether the evidence was
sufficient; (2) whether Love’s right to a speedy trial was
violated; (3) whether the sentence was an abuse of discretion;
(4) whether the court erred not instructing the jury on the
theory of self-defense for Count Two; and (5) whether Love
received ineffective assistance of trial counsel and appellate
counsel. Love filed a pro se supplemental brief amplifying the
claims put forth by counsel and adding several others. The
Government did not file a brief. Finding no error, we affirm.
“A defendant challenging the sufficiency of the
evidence to support his conviction bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted). A jury’s verdict “must be
sustained if there is substantial evidence, taking the view most
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favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942); see United States v. Perkins,
470 F.3d 150, 160 (4th Cir. 2006). Substantial evidence is
“evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005) (internal quotation marks
omitted). The court considers both circumstantial and direct
evidence, drawing all reasonable inferences from such evidence
in the Government’s favor. United States v. Harvey, 532 F.3d
326, 333 (4th Cir. 2008). In resolving issues of substantial
evidence, this court does not reweigh the evidence or reassess
the factfinder’s determination of witness credibility, see
United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008), and
“can reverse a conviction on insufficiency grounds only when the
prosecution’s failure is clear.” United States v. Moye,
454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation
marks omitted). We conclude there was sufficient evidence that
Love struck another person committing simple assault. Insofar
as Love claims the jury should have been instructed that it
could find he acted in self-defense, we conclude the trial
evidence did not support such an instruction. See, e.g., United
States v. Span, 970 F.2d 573, 576 (9th Cir. 1992) (defining
self-defense).
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We also conclude Love’s right to a speedy trial under
18 U.S.C. § 3161 (2006) or the Sixth Amendment was not violated.
This court reviews de novo the district court’s legal
interpretation of the Speedy Trial Act and reviews factual
findings for clear error. See United States v. Bush, 404 F.3d
263, 272 (4th Cir. 2005). Under 18 U.S.C. § 3161(c)(1) (2006),
a trial should commence seventy days from the filing of an
indictment or information or from the date the defendant first
appeared before the court in which the trial was pending,
whichever is later. “Any period of delay resulting from the
absence or unavailability of . . . an essential witness” is
excluded. 18 U.S.C. § 3161(h)(3)(A). Clearly, the delay not
attributable to Love’s requests for continuances was due to the
unavailability of essential witnesses. The district court did
not err in granting the Government’s motion for a continuance.
We also conclude there was no error at sentencing and
no error with respect to the fine or any of the conditions of
probation.
We have considered Love’s arguments raised in his
informal brief and find no merit. Insofar as he claims trial
and appellate counsel were ineffective, such claims are
generally not cognizable on direct appeal. United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for
adequate development of the record, a defendant must bring his
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ineffective assistance claim in a 28 U.S.C.A. § 2255 (West Supp.
2010) motion, id., unless the record conclusively establishes
ineffective assistance. United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). Because the record does not establish
counsel was ineffective, Love’s claims will not be reviewed at
this juncture.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Love’s conviction and sentence. We deny
without prejudice counsel’s motion to be relieved. This court
requires that counsel inform Love, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Love requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may renew her motion to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Love. We
dispense 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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