United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4723

JOHNNY LEE BROWN,

Defendant-Appellant.



Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, Chief District Judge.

(CR-01-6)

Submitted: February 27, 2002

Decided: March 11, 2002

Before WILKINS and MOTZ, Circuit Judges, and HAMILTON,

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

COUNSEL

Eunice Green Thompson, Damascus, Maryland, for Appellant. Zelda

Elizabeth Wesley, Assistant United States Attorney, Clarksburg, West

Virginia; Patrick Michael Flatley, OFFICE OF THE UNITED

STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

2 UNITED STATES v. BROWN

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

Following a jury trial, Johnny Lee Brown was convicted on one

count of escape from lawful custody, in violation of 18 U.S.C. § 751

(1994), for which he received a forty-one month sentence. Brown

now appeals from that conviction. His attorney has filed a brief pursu-

ant to Anders v. California, 386 U.S. 738 (1967), stating that in her

opinion there are no meritorious issues for appeal but addressing

alleged violations of Brown’s right to a speedy trial. Brown filed pro

se supplemental briefs challenging his § 751 conviction on the ground

that his underlying conviction was invalid and alleging ineffective

assistance of counsel. For the reasons that follow, we affirm.

Brown contends that pretrial delays violated his Fifth and Sixth

Amendment rights, as well as his rights under the Speedy Trial Act.

However, Brown failed to show prejudice and therefore could not

establish a Fifth Amendment violation. United States v. Lovasco, 431

U.S. 783, 790 (1977); Howell v. Barker, 904 F.2d 889, 894-95 (4th

Cir. 1990). We find that Brown failed to demonstrate any Sixth

Amendment violation under the factors enunciated by the Supreme

Court in Barker v. Wingo, 407 U.S. 514, 530-32 (1972). Moreover,

excluding the time during which pretrial motions were pending, 18

U.S.C. § 3161(h) (1994); United States v. Parker, 30 F.3d 542, 546

(4th Cir. 1994), Brown was brought to trial well within the time con-

straints of the Speedy Trial Act.

In his pro se supplemental briefs, Brown asserts that his § 751 con-

viction was invalid because his underlying conviction was invalid and

that he was denied effective assistance of counsel. However, claims

of unlawful conviction are not a defense to escape. United States v.

Haley, 417 F.2d 625, 626 (4th Cir. 1969). Because the record does not

conclusively show that Brown was denied effective assistance of

counsel, this claim is not cognizable on direct appeal. United States

v. King, 119 F.3d 290, 295 (4th Cir. 1997).

UNITED STATES v. BROWN 3

We have examined the entire record in this case in accordance with

the requirements of Anders, and find no meritorious issues for appeal.

Accordingly, we affirm. This court requires that counsel inform her

client, in writing, of his right to petition the Supreme Court of the

United States for further review. If the client requests that a petition

be filed, but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from repre-

sentation. 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