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United States v. James Hovis, 16-4267 (2016)

Court: Court of Appeals for the Fourth Circuit Number: 16-4267 Visitors: 16
Filed: Oct. 28, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4267 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES EVERETT HOVIS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. John Preston Bailey, District Judge. (2:10-cr-00024-JPB-MJA-1) Submitted: September 22, 2016 Decided: October 28, 2016 Before MOTZ, WYNN, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles T. Be
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4267


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES EVERETT HOVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. John Preston Bailey,
District Judge. (2:10-cr-00024-JPB-MJA-1)


Submitted:   September 22, 2016           Decided:   October 28, 2016


Before MOTZ, WYNN, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles T. Berry, Fairmont, West Virginia, for Appellant. Stephen
Donald Warner, Assistant United States Attorney, Elkins, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     James     Everett    Hovis    appeals     from    the    district   court’s

judgment revoking his supervised release and sentencing him to

seven months’ imprisonment.             Hovis’ attorney has filed a brief

pursuant to Anders v. California, 
386 U.S. 738
(1967), representing

that, in his view, there are no meritorious grounds for appeal but

questioning    whether    Hovis     received     ineffective     assistance   of

counsel.     We affirm.

     Hovis     contends    that     his      counsel      rendered   ineffective

assistance during his revocation proceedings by convincing him to

admit that he violated the terms of supervised release by failing

to notify the probation officer of a change of address and to

report for drug testing, which ultimately led to the revocation of

his supervised release.            Unless an attorney’s ineffectiveness

conclusively    appears    on     the   face   of   the    record,   ineffective

assistance claims are not generally addressed on direct appeal.

United States v. Benton, 
523 F.3d 424
, 435 (4th Cir. 2008); see

Strickland v. Washington, 
466 U.S. 668
, 687-88 (1984) (providing

standard).     Instead, such claims are more properly raised in a

motion brought pursuant to 28 U.S.C. § 2255 (2012), in order to

permit adequate development of the record.                    United States v.

Baptiste, 
596 F.3d 214
, 216 n.1 (4th Cir. 2010).                     Because the

record does not conclusively establish ineffective assistance of



                                         2
counsel, we conclude that Hovis’ claim should be raised, if at

all, in a § 2255 motion.

     In accordance with Anders, we have reviewed the entire record

in this case and have found no meritorious grounds for appeal.   We

therefore affirm the district court’s revocation judgment.    This

court requires that counsel inform Hovis, in writing, of the right

to petition the Supreme Court of the United States for further

review.   If Hovis 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 representation.

Counsel’s motion must state that a copy thereof was served on

Hovis.

     We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                           AFFIRMED




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Source:  CourtListener

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