United States v. Moya Moore

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 3, 2012
• Docket: 11-5073
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 11-5073

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MOYA VANTION MOORE,

Defendant - Appellant.

No. 11-5190

MARVIN EARL CANNON,

Appeals from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, District Judge. (4:10-cr-00046-BO-1; 4:10-cr-00046-BO-2)

Submitted: July 13, 2012 Decided: August 3, 2012

Before KING, DIAZ, and FLOYD, Circuit Judges. No. 11-5073: Dismissed, and No. 11-5190: Dismissed in part, affirmed in part, by unpublished per curiam opinion.

Rudolph A. Ashton, III, MCCOTTER ASHTON, P.A., New Bern, North Carolina; Dennis M. Hart, Washington, D.C., for Appellants. Kristine L. Fritz, OFFICE OF THE 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Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

In Case No. 11-5073, Moya Vantion Moore seeks to

appeal his 235-month sentence. The Government has moved to

dismiss the appeal as barred by Moore’s waiver of the right to

appeal included in the plea agreement. Upon review of the plea

agreement and the transcript of the Fed. R. Crim. P. 11 hearing,

we conclude that Moore knowingly and voluntarily waived his

right to appeal and that the issues Moore seeks to raise on

appeal fall squarely within the compass of his waiver of

appellate rights. Accordingly, we grant the Government’s motion

to dismiss.

In Case No. 11-5190, Marvin Earl Cannon seeks to

appeal his 292-month sentence. The Government has moved to

dismiss the appeal as barred by Cannon’s waiver of the right to

appeal included in the plea agreement. Upon review of the plea

agreement, we conclude that Cannon knowingly and voluntarily

waived his right to appeal. Further, with the exception of his

claim of ineffective assistance of counsel, the claims Cannon

seeks to raise on appeal fall squarely within the compass of his

waiver of appellate rights. Thus, we grant the Government’s

motion to dismiss Cannon’s appeal except as to Cannon’s claim

that he received ineffective assistance of counsel.

Cannon’s appellate waiver excepted appeals based on

ineffective assistance of counsel. He therefore has not waived

3 his right to pursue this claim on direct appeal. However,

claims of ineffective assistance of counsel are not cognizable

on direct appeal unless the record conclusively establishes that

counsel provided ineffective assistance. United States v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); see also United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (“[I]t is well

settled that a claim of ineffective assistance should be raised

in a 28 U.S.C. § 2255 motion in the district court rather than

on direct appeal, unless the record conclusively shows

ineffective assistance.”) (internal quotation marks omitted).

The record does not conclusively establish that Cannon’s counsel

was ineffective. Thus, we affirm Cannon’s conviction and

sentence to the extent that he makes this challenge.

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.

No. 11-5073: DISMISSED No. 11-5190: DISMISSED IN PART, AFFIRMED IN PART