United States v. Fredricksen

Opinion

Appellate Case: 22-4067 Document: 010110829075 Date Filed: 03/20/2023 Page: 1 FILED

United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 20, 2023

_________________________________

Christopher M. Wolpert

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-4067 (D.C. No. 2:19-CR-00407-JNP-1)

DOMINIC JAMES FREDRICKSEN, (D. Utah)

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT *

_________________________________

Before PHILLIPS, BALDOCK, and ROSSMAN, Circuit Judges.

_________________________________

On January 9, 2020 Defendant Dominic Fredricksen pleaded guilty to one count of Use of Interstate Facilities to Transmit Information about a Minor in violation of 18 U.S.C. § 2425. The district court sentenced Defendant to 60 months’ imprisonment followed by a life term of supervised release. As part of his plea agreement, Defendant waived the right to appeal his conviction or sentence unless he received a sentence greater than 60 months imprisonment—the maximum under his guideline range.

*

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

2

Appellate Case: 22-4067 Document: 010110829075 Date Filed: 03/20/2023 Page: 2

Defendant nevertheless seeks to appeal his conviction on the ground that he received ineffective assistance of counsel before the trial court. After carefully reviewing this case, Defendant’s appellate counsel concluded there were no factually or legally non-frivolous grounds on which to raise an appeal. Accordingly, Defendant’s counsel filed an Anders brief and a motion to withdraw as counsel. See Anders v. California, 386 U.S. (1967). Defendant did not respond to his counsel’s Anders brief.

We have reviewed the record and counsel’s Anders brief and agree there are no non-

frivolous grounds on which Defendant can appeal. Notwithstanding the appellate waiver in Defendant’s plea agreement, ineffective assistance of counsel claims are appropriately raised in collateral proceedings under 28 U.S.C. § 2255. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“Ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal.”). Although there are exceptions to this rule, see United States v. Gallegos, 108 F.3d 1272, 1280 (10th Cir. 1997), none apply in this case. Defendant must raise the issue of ineffective assistance of counsel in a proceeding under § 2255, should he choose to do so.

We therefore AFFIRM the district court’s judgment, GRANT counsel’s motion to withdraw, and DISMISS Defendant’s ineffective assistance of counsel claims WITHOUT PREJUDICE so that he may properly raise them in a collateral proceeding if he so desires.

Entered for the Court

Bobby R. Baldock

Circuit Judge