                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4982



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


MICHAEL GRAYLEN WHEELER,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:04-cr-00066-RLV)


Submitted:   July 31, 2008                 Decided:   August 4, 2008


Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Algernon Williams, Sr., LAW OFFICE OF ALGERNON WILLIAMS, SR.,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Michael Graylen Wheeler pled guilty to one count of

possession with intent to distribute cocaine base, in violation of

21 U.S.C. § 841 (2000), and one count of using and carrying a

firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1) (2000).            The district court

sentenced Wheeler to a total of 152 months’ imprisonment.          Wheeler

timely appealed. His attorney has filed a brief in accordance with

Anders   v.    California,   386   U.S.    738   (1967),   identifying   no

meritorious grounds for appeal but questioning whether the district

court erred in calculating Wheeler’s criminal history points.

Wheeler filed a supplemental pro se brief claiming that he was

denied effective assistance of counsel.

           Counsel questions whether the district court erred in

calculating Wheeler’s criminal history points, alleging that the

government did not refute Wheeler’s testimony that five of his

prior convictions were attained without the representation of

counsel.      A defendant may challenge at sentencing the validity of

a prior conviction on the ground that he was denied counsel.

Custis v. United States, 511 U.S. 485, 495 (1994). However, he

bears the burden of showing that the prior conviction is invalid.

United States v. Jones, 977 F.2d 105, 110-11 (4th Cir. 1992).

Wheeler had to overcome the presumption that the state court

informed him of his right to counsel as it was required by statute


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to do, and that, if he was not represented, it was because he

waived his right to counsel.           See Parke v. Raley, 506 U.S. 20,

28-34 (1992).    Although he testified that he did not recall having

counsel   or   waiving   his   right    to    counsel    for   the   challenged

convictions, Wheeler offered no affirmative evidence to rebut the

presumption that he had counsel or signed a waiver of counsel form.

Thus, the district court did not err in overruling Wheeler’s

objection and considering the prior convictions in calculating his

criminal history.

            In his supplemental pro se brief, Wheeler asserts that he

was denied effective assistance of counsel.             Claims of ineffective

assistance of counsel generally are not cognizable on direct appeal

unless    counsel’s   ineffectiveness        conclusively      appears   on   the

record.    See United States v. James, 337 F.3d 387, 391 (4th Cir.

2003).     Wheeler fails to make this showing.                 Accordingly, we

decline to consider this issue on direct appeal.

            In accordance with Anders, we have reviewed the record

and have found no meritorious issues for appeal. We therefore

affirm Wheeler’s conviction and sentence.                Counsel’s motion to

withdraw is denied at this juncture.             This court requires that

counsel inform his 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


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court for leave to withdraw from representation.   Counsel’s motion

must state that a copy thereof was served on the client. 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




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