36 F3d 1095 United States v. McClure

36 F.3d 1095

UNITED STATES of America, Plaintiff-Appellee,
Terry Richard MCCLURE, d/b/a Mac's Rare Wax, Defendant-Appellant.

No. 94-5059.

United States Court of Appeals, Fourth Circuit.

Submitted: August 25, 1994.
Decided: September 23, 1994.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Richard L. Voorhees, Chief District Judge. (CR-90-39-A)

Roger T. Smith, Asheville, North Carolina, for Appellant.

Thomas Richard Ascik, Office of the United States Attorney, Asheville, North Carolina, for Appellee.



Before RUSSELL and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.



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Terry Richard McClure appeals the district court's order revoking his supervised release, imposing a twelve-month prison term, and requiring him to pay any unpaid balances from the original judgment. McClure's attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). McClure was served a copy of the brief and notified of his right to file a supplemental brief, which he failed to do. After a complete and independent review of the record, we affirm.


On appeal, McClure claims that he received ineffective assistance of counsel during the revocation process. A claim of ineffective assistance of counsel should be raised by motion under 28 U.S.C. Sec. 2255 (1988), in the district court and not on direct appeal, unless it "conclusively appears" from the record that defense counsel did not provide effective representation. United States v. Fisher, 477 F.2d 300, 302 (4th Cir.1973) (citing United States v. Mandello, 426 F.2d 1021, 1023 (4th Cir.1970)); see also United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.1991), cert. denied, 60 U.S.L.W. 3717 (U.S.1992). Because the record before us fails to establish conclusively trial counsel's ineffective assistance, we decline to review this issue at this time.


Accordingly, we affirm the district court's order. Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964, 18 U.S.C.A.Sec. 3006A (West 1985 & Supp.1994), this Court requires that counsel inform his client, in writing, of his right to petition the Supreme Court for further review. If requested by his client to do so, counsel should prepare a timely petition for a writ of certiorari.


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.