                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5127


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ROSE MARY BROOKS, Rosie Brooks,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:08-cr-00048-RLV-DSC-2)


Submitted:   June 22, 2011                    Decided:   July 1, 2011


Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dennis E. Jones, DENNIS E. JONES & ASSOCIATES, P.C., Lebanon,
Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

              Rose Mary Brooks pleaded guilty, pursuant to a plea

agreement, to one count of wire fraud, in violation of 18 U.S.C.

§   1343     (2006).       The     district        court       sentenced    Brooks     to   108

months’ imprisonment and ordered her to pay restitution.

              Brooks      appealed, 1        and    her    counsel       filed    an   Anders 2

brief        certifying      that      there       are    no    meritorious       issues    for

appeal but asking this court to review whether Brooks was denied

effective assistance of counsel when trial counsel failed to

investigate and develop mitigating evidence concerning Brooks’

mental illness.            Brooks has not filed a pro se supplemental

brief, though informed of her right to do so.

              To establish ineffective assistance of counsel, Brooks

must       show   that:      (1)      counsel’s          performance       fell    below     an

objective         standard       of     reasonableness;            and     (2)     counsel’s

deficient         performance          was     prejudicial.                Strickland        v.

Washington, 466 U.S. 668, 687-88 (1984).                          Claims of ineffective

assistance of counsel are generally not cognizable on direct

appeal, unless counsel’s “ineffectiveness conclusively appears

from the record.”            United States v. Baldovinos, 434 F.3d 233,

       1
       Brooks did not initially file an appeal.      However, the
district court granted her 28 U.S.C.A. § 2255 (West Supp. 2010)
motion in part, in order to afford her a direct appeal.
       2
           Anders v. California, 386 U.S. 738 (1967).



                                               2
239 (4th Cir. 2006).          As counsel notes, “in most cases a motion

brought under § 2255 is preferable to direct appeal for deciding

claims of ineffective assistance.”                 Massaro v. United States,

538   U.S.   500,     504   (2003).       Typically,      as       here,    “[w]hen    an

ineffective-assistance         claim      is   brought        on     direct        appeal,

appellate counsel and the court must proceed on a trial record

not   developed       precisely     for    the    object       of        litigating     or

preserving the claim and thus often incomplete or inadequate for

this purpose.”      Id. at 504-05.

             The appellate record here falls short of conclusively

demonstrating         deficient       performance        by         counsel         below.

Therefore,    we    decline    to   address      this   claim       in    this     appeal,

noting that Brooks may pursue it in a motion filed pursuant to

28 U.S.C.A. § 2255. 3

             In the course of our Anders review, we have assessed

the Fed. R. Crim. P. 11 plea colloquy and conclude that the

district      court     substantially          complied        with         Rule      11’s


      3
       Although Brooks has already filed a § 2255 motion, where,
as here, “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) (internal quotation marks omitted).       In
reviewing Brooks’ initial § 2255 motion, the district court
properly dismissed her additional claims without prejudice.
This will “allow [Brooks] to raise collateral claims in a
subsequent § 2255 motion filed after the direct appeal is
concluded.” Id. at 438.



                                          3
requirements.         We note that the magistrate judge neglected to

advise   Brooks       of   the     court’s    obligation       to   impose     a   special

assessment,      as     required     by   Rule     11(b)(1)(L).           However,       the

omission did not affect Brooks’ substantial rights, Rule 11(h),

because she agreed to pay the special assessment as part of her

plea agreement and the Government reviewed this provision during

the Rule 11 colloquy.

            In accordance with Anders, we have thoroughly reviewed

the entire record in this case and have found no meritorious

issues for appeal.            We therefore affirm Brooks’ conviction and

sentence.        This court requires that counsel inform Brooks, in

writing,    of    the      right    to   petition    the   Supreme        Court     of   the

United States for further review.                    If Brooks 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 Brooks.

            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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