UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4364

FRANK PHILLIP KALITA, JR.,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4386

FRANK PHILLIP KALITA, JR.,

Defendant-Appellant. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-01-391-A)

Submitted: January 30, 2003

Decided: February 10, 2003

Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Frank W. Dunham, Jr., Federal Public Defender, Michael S. Nachmanoff, Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant. Michael Edward Rich, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

In Appeal No. 02-4364, Frank Phillip Kalita, Jr., appeals from the

district court’s order denying his motion to file an untimely appeal.

In Appeal No. 02-4386, he appeals from the district court’s order partially denying his motion for provision of documents at government

expense. Kalita’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious

issues for appeal. Kalita has filed a pro se supplemental brief challenging the validity of his guilty plea and his sentence, and asserting

claims of ineffective assistance of counsel. We affirm in both cases.

Kalita’s Judgment and Commitment order was entered on January

5, 2002; Kalita dated his notice of appeal March 16, 2002. The district

court determined that the notice of appeal was untimely filed and that

Kalita failed to show excusable neglect or good cause to warrant an

extension of the appeal period. We find no abuse of discretion in this

determination. See Fed. R. App. P. 4(b)(1)(A); United States v. Raynor, 939 F.2d 191, 197 (4th Cir. 1991). Accordingly, we affirm the

district court’s denial of Kalita’s motion to file an untimely appeal.

In the second appeal, Kalita challenges the district court’s denial of

his motion for a copy of the government’s sentencing motion at government expense. Finding that Kalita failed make a sufficient showing

of his need for this document in relation to his appeal, the district

court denied the motion. We find no abuse of discretion in this determination, and therefore affirm. See 28 U.S.C. § 753(f) (2000); Jones

v. Superintendent, Va. State Farm, 460 F.2d 150, 152-53 (4th Cir.

1972). 

2 UNITED STATES v. KALITA
In his pro se supplemental brief, Kalita raises challenges to the

validity of his guilty plea and his sentence. Because Kalita failed to

note a timely appeal from his criminal judgment, those issues are not

properly before this court. See Raynor, 939 F.2d at 197. Kalita also

asserts that counsel was ineffective with respect to his plea, his sentencing, and the failure to file a timely notice of appeal. Claims of

ineffective assistance of counsel are not cognizable on direct appeal

unless counsel’s deficient performance plainly appears on the face of

the record. See United States v. King, 119 F.3d 290, 295 (4th Cir.

1997); United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.

1991). Because the record does not plainly evidence that Kalita’s

counsel rendered ineffective assistance, these claims must be raised,

if at all, in a motion filed pursuant to 28 U.S.C. § 2255 (2000). See

United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). 

In accordance with Anders, we have examined the entire record in

this case and have found no meritorious issues for appeal. We therefore affirm the district court’s orders denying Kalita’s motion to file

an untimely appeal, and denying, in part, his motion for copies of

documents at government expense. This court requires that counsel

inform his client, in writing, of his right to petition the Supreme Court

of the United States for further review. If the client 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 the client. 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

UNITED STATES v. KALITA 3