                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-4193



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


CALVIN DARNELL PARNELL,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:06-cr-00258-RDB)


Submitted:   January 7, 2008                 Decided:   January 15, 2008


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Daniel A. Loeffler, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL,
P.L.L.C., Washington, D.C., for Appellant.    Rod J. Rosenstein,
United States Attorney, Bryan M. Giblin, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Calvin Darnell Parnell appeals his conviction and 188-

month sentence imposed after he pled guilty, pursuant to a plea

agreement,     to   being   a   felon    in     possession   of   a   firearm   and

ammunition, in violation of 18 U.S.C. § 922(g) (2000).                          The

Government has moved to dismiss the appeal, asserting that Parnell

waived his right to appeal in the plea agreement.                 Parnell opposes

the Government’s motion claiming the appellate waiver is invalid

because he was denied effective assistance of counsel and because

the Government wrongfully withheld Giglio* material from him.                   We

grant the motion to dismiss in part, deny it in part, and affirm in

part.

             A defendant may waive the right to appeal if that waiver

is knowing and intelligent.         See United States v. Blick, 408 F.3d

162, 169 (4th Cir. 2005).         Generally, if the district court fully

questions a defendant regarding the waiver of his right to appeal

during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid

and enforceable.      See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).      Whether a defendant validly waived his right to

appeal is a question of law that we review de novo.                See Blick, 408

F.3d at 168.    Our review of the record reveals that, absent a claim

that would be excepted from the waiver, Parnell validly waived his

right to appeal.


     *
        Giglio v. United States, 405 U.S. 150 (1972).

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           While         it   is    true     that     Parnell      may    challenge      the

voluntariness       of    his      plea    based     on    a    claim     of    ineffective

assistance     of   trial       counsel,      see     Johnson,      410    F.3d    at   151,

ineffective     assistance          of     counsel     claims      are    not     generally

cognizable     on    direct         appeal     unless          ineffective      assistance

“conclusively appears” on the record, see United States v. James,

337 F.3d 387, 391 (4th Cir. 2003).                   Although Parnell alleges his

attorney was ineffective in several respects, these allegations are

nothing more than the summary assertions of appellate counsel.                            In

fact, the record reveals that Parnell discussed his plea with his

privately retained attorney, that he was fully satisfied with his

attorney’s representation and the advice he provided, and that his

attorney had “argued good points on [his] behalf and he questioned

[his] witnesses with good questions and tried to bring out pretty

much the point I was trying to make.”                            Parnell admitted his

attorney had done everything he had asked him to do.                           Accordingly,

because   we   conclude         that      Parnell’s       ineffective      assistance     of

counsel does not conclusively appear on the record, this claim is

not cognizable on direct appeal and must instead be asserted in an

appropriate motion for post-conviction relief.

           Even     assuming         without    deciding         that     the   Government

wrongfully withheld Giglio material from Parnell, we find that its

failure to disclose the information--as well as the district

court’s failure to share the information with Parnell prior to


                                            - 3 -
sentencing--did not render Parnell’s plea involuntary.            The Due

Process Clause requires the government to disclose to the defense

prior to trial any exculpatory or impeaching evidence in its

possession.    See Giglio, 405 U.S. at 153-55 (requiring disclosure

of evidence affecting the credibility of prosecution witnesses);

Brady v. Maryland, 373 U.S. 83, 86-88 (1963) (requiring disclosure

of exculpatory evidence).      Due process is violated, however, only

if the evidence in question:         (1) is favorable to the defendant,

because it is either exculpatory or impeaching; (2) was suppressed

by the Government; and (3) is material.        See Strickler v. Greene,

527 U.S. 263, 281-82 (1999).

            Undisclosed evidence is material when its cumulative

effect is such that “there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different.”       Kyles v. Whitley, 514 U.S.

419, 433 (1995) (internal quotations omitted).              A reasonable

probability is one sufficient to “undermine confidence” in the

outcome.   Id. at 435.   “As long as evidence is disclosed before it

is too late for the defendant to make effective use of it, there is

no due process violation.”          United States v. Russell, 971 F.2d

1098, 1112 (4th Cir. 1992).

            We conclude that Parnell’s mere assertion that he would

have insisted on going to trial had the Government disclosed the

alleged    Giglio   material   is   insufficient   to   render   his   plea


                                    - 4 -
involuntary.      In fact, this assertion is belied by the fact that

after the district court informed Parnell of the existence of the

alleged Giglio material, and after it specifically informed Parnell

that   the    information    would      have    no    effect    on   its   denial   of

Parnell’s suppression motion, Parnell still insisted on pleading

guilty.      Thus, Parnell may not now claim that his plea would have

been   different    had     he   been    aware       of   the   substance   of   that

information.     See Burket v. Angelone, 208 F.3d 172, 191 (4th Cir.

2000) (“Absent clear and convincing evidence to the contrary, [a

criminal defendant] is bound by the representations he made during

the plea colloquy.”).

             Accordingly, we grant the Government's motion to dismiss

Parnell’s appeal to the extent he challenges his sentence, deny the

Government's motion to dismiss to the extent Parnell’s appeal

challenges the voluntariness of his guilty plea based on alleged

ineffective assistance of counsel and an alleged Giglio violation,

and affirm as to these claims.                 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.

                                                                DISMISSED IN PART;
                                                                  AFFIRMED IN PART




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