     Case: 11-60459       Document: 00512187434         Page: 1     Date Filed: 03/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 26, 2013
                                     No. 11-60459
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SEABRON MACKUNDRA MILLENDER, also known as Packy,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:08-CR-91-4


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Seabron Mackundra Millender appeals following his guilty plea conviction
and sentencing for conspiracy to possess with intent to distribute a controlled
substance. He raises claims of district court error and ineffective assistance of
trial counsel. The Government has moved to dismiss or, alternatively, for
summary affirmance, contending that Millender’s appeal is barred by the
appellate waiver in his plea agreement. Additionally, the Government moves to
strike an affidavit submitted by Millender for the first time on appeal.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 11-60459     Document: 00512187434      Page: 2   Date Filed: 03/26/2013

                                  No. 11-60459

      The plain language of Millender’s plea agreement, which states that he
waived the right to appeal his conviction and sentence on all grounds, confirms
that the waiver applies to the instant appeal. See United States v. McKinney,
406 F.3d 744, 746 (5th Cir. 2005). Our review of the record indicates that
Millender knowingly and voluntarily waived his right to appeal because he
indicated that he had reviewed and understood the waiver. See id.
      Among his claims, however, Millender argues that his trial counsel’s
ineffective assistance rendered his guilty plea unknowing and involuntary. An
ineffective assistance claim will survive an appeal waiver when the alleged
ineffectiveness “directly affected the validity of that waiver or the plea itself.”
United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). In general, a claim of
ineffective assistance of counsel cannot be addressed on direct appeal unless the
claim has been presented to the district court. See United States v. Brewster, 137
F.3d 853, 859 (5th Cir. 1998); United States v. Navejar, 963 F.2d 732, 735 (5th
Cir. 1992); see also Massaro v. United States, 538 U.S. 500, 505 (2003).
      We conclude that the factual issues underlying Millender’s claims of
ineffective assistance cannot be determined on the current record. The Supreme
Court has noted that such factual issues are best resolved by the district court
on 28 U.S.C. § 2255 review. See Massaro, 538 U.S. at 502-06. Consequently, we
decline to address Millender’s ineffective assistance claim on direct appeal. Our
decision not to address the issue is without prejudice to Millender raising his
claims again in a timely § 2255 proceeding.
      For the reason that Millender waived appeal, the Government’s motion for
summary affirmance is GRANTED, and the judgment of the district court is
AFFIRMED. The Government’s motion to strike Millender’s non-record exhibit
and its alternative motion to dismiss are DENIED as unnecessary.




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