                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4123



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CHRISTOPHER LEE SHADE,

                                              Defendant - Appellant.


                             No. 06-5040



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CHRISTOPHER LEE SHADE,

                                              Defendant - Appellant.


Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (3:02-cr-00045-WCB; 3:04-cv-00037-WCB)


Submitted:   July 27, 2007                 Decided:   August 17, 2007


Before MOTZ and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.


Kevin D. Mills, LAW OFFICES OF KEVIN D. MILLS, Martinsburg, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Paul T. Camilletti, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           Christopher Lee Shade pleaded guilty pursuant to a plea

agreement to one count of aiding and abetting the distribution of

6.57 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B) (2000). The district court sentenced Shade to 112 months

of imprisonment, four years of supervised release, and a $100

special assessment.    After counsel failed to file a notice of

appeal, Shade filed a motion pursuant to 28 U.S.C. § 2255 (2000),

in which he alleged three claims of ineffective assistance of

counsel.   The district court granted relief on Shade’s § 2255

motion solely to allow him a belated appeal.      The court held a

resentencing hearing and imposed the same sentence imposed at the

prior sentencing.   Shade timely appealed.

           On appeal, Shade asserts that the district court erred in

rejecting the magistrate judge’s recommendation on his § 2255

motion that his plea and appeal waiver were not knowing and

voluntary, and argues that counsel provided ineffective assistance.

The Government responds, arguing that whether Shade’s appeal waiver

was knowing and voluntary is moot because Shade has been allowed an

appeal and the Government is not seeking to dismiss the appeal

based on his waiver.    The Government also argues that Shade has

never sought to withdraw his guilty plea and did not assert that

his plea was involuntary in his § 2255 motion, and that Shade has




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failed to show that ineffective assistance of counsel conclusively

appears on the record.       We affirm.

          We conclude that the Government is correct that Shade’s

argument regarding the waiver of his right to appeal is moot

because the Government is not seeking to enforce the waiver of his

appellate rights that was included in his plea agreement.                  See

United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).               Shade

did not move in the district court to withdraw his guilty plea or

otherwise assert that his plea was not knowing and voluntary;

therefore, this court reviews whether his plea was knowing and

voluntary for plain error. See United States v. Martinez, 277 F.3d

517, 525 (4th Cir. 2002).      To demonstrate plain error, Shade must

establish that error occurred, that it was plain, and that it

affected his substantial rights. United States v. Hughes, 401 F.3d

540, 547-48 (4th Cir. 2005).          If a defendant satisfies these

requirements, the court’s “discretion is appropriately exercised

only when failure to do so would result in a miscarriage of

justice, such as when the defendant is actually innocent or the

error   seriously   affects     the   fairness,    integrity       or   public

reputation   of   judicial    proceedings.”       Id.   at   555    (internal

quotation marks and citation omitted).        Our review of the record

leads us to conclude that the district court conducted a thorough

inquiry pursuant to Fed. R. Crim. P. 11 that verified that Shade’s

guilty plea was knowing and voluntary.


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            Shade   also   asserts     that   counsel    was   ineffective   in

failing to file a notice of appeal as requested, and several other

claims related to counsel’s representation.             Claims of ineffective

assistance of counsel are generally not cognizable on direct

appeal.    See United States v. King, 119 F.3d 290, 295 (4th Cir.

1997).    Rather, to allow for adequate development of the record, a

defendant must bring his claim in a § 2255 motion.             See id.; United

States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).               An exception

exists    when   the    record    conclusively    establishes       ineffective

assistance.      United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999); King, 119 F.3d at 295.            Shade was granted relief, in

the form of a belated appeal, on his claim that counsel failed to

file a notice of appeal.       With respect to the remaining claims, our

review of the record leads us to conclude that it does not

conclusively show that counsel was ineffective.                  We therefore

decline to consider Shade’s allegations of ineffective assistance

of counsel, as Shade may raise them in another § 2255 motion.

“[W]hen a prisoner’s first § 2255 motion is granted to reenter

judgment and permit a direct appeal, ‘the counter of collateral

attacks pursued’ is ‘reset to zero.’”          In re Goddard, 170 F.3d 435,

438 (4th Cir. 1999) (quoting Shepeck v. United States, 150 F.3d

800, 801 (7th Cir. 1998)).

            Accordingly, we affirm Shade’s conviction and sentence.

We   dispense    with   oral     argument   because   the   facts    and   legal


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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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