UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4357

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GARY IVAN TERRY; SCAT, INCORPORATED,

Defendants - Appellants.

No. 06-4468

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GARY IVAN TERRY,

Defendant - Appellant.

Appeals from the United States District Court for the Middle

District of North Carolina, at Durham & Greensboro. N. Carlton

Tilley, Jr., District Judge. (1:03-cr-00299-NCT-1)

Submitted: May 18, 2007 Decided: July 11, 2007
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Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.

No. 06-4357, dismissed; No. 06-4468, affirmed by unpublished per

curiam opinion.

Charles R. Brewer, Asheville, North Carolina, for Appellants. Anna

Mills Wagoner, United States Attorney, Lisa B. Boggs, Assistant

United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

In these two appeals, Gary Ivan Terry challenges the

district court’s orders denying his motion for substitution of new

counsel, revoking his supervised release and imposing a seven-month

term of imprisonment followed by twenty-four months of supervised

release. He contends that the district court lacked jurisdiction

over the proceedings, that the court erred by denying his motion

for substitution of new counsel, and that he was denied the

effective assistance of counsel. We dismiss appeal No. 06-4357 as

interlocutory, and affirm the district court’s order in appeal No.

06-4468.

 The Government moved to dismiss appeal No. 06-4357 as

interlocutory. Terry noted this appeal from the district court’s

order denying his motion for substitution of counsel. Because the

order from which the appeal was taken was not a final order, we

grant the Government’s motion and dismiss appeal No. 06-4357 for

lack of jurisdiction. See United States v. Baxter, 19 F.3d 155,

156 (4th Cir. 1994) (“final judgment in a criminal case means

sentence”).

Terry first argues that his underlying conviction in

Missouri is invalid, and therefore the district court lacked

jurisdiction to revoke his supervised release. An appeal from the

revocation of supervised release is not the proper forum in which

to challenge the validity of the underlying criminal conviction.
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United States v. Hofierka, 83 F.3d 357, 363 (11th Cir. 1996); see

United States v. Torrez-Flores, 624 F.2d 776, 780 (7th Cir. 1980).

Terry next contends that the district court erred by

denying his motion for substitution of counsel during the March 30,

2005 hearing. Because there was not a total breakdown in

communication between Terry and counsel, we find no abuse of

discretion by the district court in denying the motion. See United

States v. Johnson, 114 F.3d 435, 443-44 (4th Cir. 1997) (holding

that disagreement with counsel concerning trial strategy and

tactics does not constitute a breakdown in communications

sufficient to warrant new counsel); United States v. Gallop, 838

F.2d 105, 108 (4th Cir. 1988) (providing standard of review). 

Terry also argues that he was denied the effective

assistance of counsel during the March 30, 2005 hearing. Claims of

ineffective assistance of counsel are not cognizable on direct

appeal unless the record conclusively establishes ineffective

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

2003); United States v. Richardson, 195 F.3d 192, 198 (4th Cir.

1999). To allow for adequate development of the record, generally

such claims should be brought in a 28 U.S.C. § 2255 (2000) motion.

United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Because

ineffective assistance of counsel does not clearly appear from the

record, we decline to address this issue.
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In conclusion, we grant the Government’s motion to

dismiss appeal No. 06-4357 as interlocutory, grant Terry’s motion

to expedite his appeal, deny his motion for appointment of counsel,

deny his motion for a stay of the district court proceedings

pending appeal, and affirm his conviction and sentence imposed for

violating his supervised release terms. 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.

No. 06-4357 DISMISSED

No. 06-4468 AFFIRMED