                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4780


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL CORRAN DAVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:13-cr-00027-FL-1)


Submitted:   May 12, 2014                     Decided:   May 16, 2014


Before MOTZ, KING, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael       Corran      Davis       pleaded      guilty        to    aggravated

sexual    abuse,     in    violation      of      18    U.S.C.       §     2241(a)(1),       (2)

(2012).      The district court sentenced Davis to 168 months of

imprisonment    and       he   now    appeals.         Appellate          counsel     filed    a

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

questioning     whether        the     Government            committed           prosecutorial

misconduct     and    whether         trial       counsel       rendered           ineffective

assistance.     Davis was informed of his right to file a pro se

supplemental brief but has not done so.                         Finding no error, we

affirm.

            Counsel        first       questions            whether        the      Government

committed    prosecutorial           misconduct        in    delaying       more     than    two

years between identifying Davis as a suspect in the offense and

obtaining     an      indictment,         during            which        time      Davis     was

incarcerated on unrelated state charges.                       To succeed on a claim

of   prosecutorial        misconduct,        a    defendant         must    show     that    the

government’s       “conduct      prejudicially          affected           his    substantial

rights so as to deprive him of a fair trial.”                             United States v.

Scheetz, 293 F.3d 175, 185 (4th Cir. 2002).                                With respect to

pre-indictment delay, “intentional delay by the government to

gain   tactical      advantage        over       the   defendant,          in     addition    to

substantial prejudice to the defendant, [violates] due process.”

Howell v. Barker, 904 F.2d 889, 894 (4th Cir. 1990) (citation

                                              2
omitted).        We    have     thoroughly          reviewed      the    record    and   the

relevant legal authorities and conclude that the Government did

not    commit    prosecutorial            misconduct    in       delaying    bringing      an

indictment against Davis.

               Appellate counsel next questions whether Davis’ trial

counsel       rendered    ineffective           assistance       for     withdrawing      his

motion to dismiss the indictment based on the pre-indictment

delay.    To prove a claim of ineffective assistance of counsel, a

defendant       must     show       (1)     “that     counsel’s         performance       was

deficient,” and (2) “that the deficient performance prejudiced

the    defense.”         Strickland        v.   Washington,        466    U.S.    668,    687

(1984).       Under the second prong of the test in the context of a

conviction       following      a     guilty        plea,    a    defendant       can    show

prejudice only by demonstrating “a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.”                          Hill v. Lockhart, 474

U.S. 52, 59 (1985).

               We will address a claim of ineffective assistance on

direct appeal only if the lawyer’s ineffectiveness conclusively

appears on the record.               United States v. Baldovinos, 434 F.3d

233, 239 (4th Cir. 2006).                  We find that ineffective assistance

does    not    conclusively         appear      on    the   record.         We    therefore

decline to address this claim on direct appeal.



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           We have examined the entire record in accordance with

the requirements of Anders and have found no meritorious issues

for appeal.      Accordingly, we affirm the judgment of the district

court.     This    court    requires      that     counsel       inform   Davis,    in

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

United States for further review.                  If Davis 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 Davis.                    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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