FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15819

Non-Argument Calendar

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D. C. Docket No. 01-00149-CR-T-N

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

WENDELL LAMAR WILSON, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(September 17, 2008)

Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:

Wendell Wilson appeals his conviction for carrying a firearm during a drug

trafficking crime, in violation of 18 U.S.C. § 924(c), on the grounds of ineffective
 Wilson does not challenge the validity of the entry of his plea of guilt, his plea agreement, 1

or the reasonableness of his sentence. Therefore, he has abandoned any arguments with respect to

those issues. See United States v. Blasco, 702 F.2d 1315, 1332 n.28 (11th Cir. 1983). Wilson also

did not seek review of the denial of his other § 2255 claims and has not obtained a certificate of

appealability as required by 28 U.S.C. § 2253(c). See United States v. Futch, 518 F.3d 887 (11th

Cir. 2008), petition for cert. filed, (No. 07-11264) (Jun. 2, 2008). Thus, on appeal, our review does

not include review of the denial of Wilson’s remaining § 2255 claims.

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assistance of counsel. Upon review, we decline to review Wilson’s ineffective- 1

assistance-of-counsel claim and we affirm Wilson’s conviction.

Wilson pleaded guilty to violating § 924(c) pursuant to a written plea

agreement. The terms of the agreement included a waiver of appeal in which

Wilson agreed not to challenge his sentence on direct appeal or in a collateral

attack except in the case of ineffective assistance of counsel. At the change-of-plea

hearing, the court confirmed that Wilson was satisfied with counsel and understood

the plea agreement. Finding that the plea was made knowingly and voluntarily, the

court adjudicated Wilson guilty. Wilson was sentenced to five years’

imprisonment, the mandatory minimum sentence for his offense.

Wilson did not file a direct appeal, but instead filed a motion to vacate his

sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel for,

inter alia, counsel’s failure to file a direct appeal. The court granted the motion in

part and re-entered the judgment with the same sentence, thus renewing the time in

which to file a direct appeal. Wilson then filed his direct appeal, which is before us

now. On appeal, Wilson argues that he is entitled to remand because his trial
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counsel rendered ineffective assistance by (1) failing to file a motion to dismiss the

indictment against him due to violation of the Speedy Trial Clause of the Sixth

Amendment; and (2) failing to spend adequate time in preparation of his defense

due to his busy trial schedule. 

Both this court and the Supreme Court have indicated that it is preferable to

decide claims of ineffective assistance of counsel on collateral review. Massaro v.

United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003);

United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). However, we are

not precluded from reviewing ineffective-assistance-of-counsel claims as part of a

direct criminal appeal where the record is sufficiently developed. Massaro, 538

U.S. at 504; Bender, 290 F.3d 1284. 

“Whether a criminal defendant’s trial counsel was ineffective is a mixed

question of law and fact, subject to de novo review.” Bender, 290 F.3d at 1284. A

claim of ineffective assistance will not be sustained unless the defendant satisfies

two prongs; the defendant must show both that counsel’s performance “fell below

an objective standard of reasonableness” and that the defendant was prejudiced as a

result. Strickland v. Washington, 466 U.S. 668, 687-88, 690, 694, 104 S.Ct. 2052,

2064, 2066, 2068, 80 L.Ed.2d 674 (1984). 

This court has held that the entry of a plea waives all non-jurisdictional
 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court

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held that all decisions handed down by the former Fifth Circuit before the close of business on

September 30, 1981, are binding precedent in the Eleventh Circuit.

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defects occurring prior to the time of the plea, including violations of the

defendant’s rights to a speedy trial. United States v. Yunis, 723 F.2d 795, 795

(11th Cir. 1984) (holding that guilty plea waived all non-jurisdictional defects

including right to speedy trial); United States v. Saldana, 505 F.2d 628, 628 (5th

Cir.1974) (holding that guilty plea waived Sixth Amendment right to speedy trial). 2

Because the district court did not address the claims of ineffective assistance

of counsel during Wilson’s prosecution or the litigation of his 28 U.S.C. § 2255

motion, and the record on appeal does not establish whether or not counsel’s

performance was deficient or prejudiced Wilson, review of the claims is not

appropriate at this time. To the extent Wilson challenges his conviction on

constitutional speedy trial grounds, the entry of his guilty plea waived any

violation of his right to a speedy trial. Accordingly, we AFFIRM Wilson’s

conviction.