UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5127

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ROSE MARY BROOKS, Rosie Brooks,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:08-cr-00048-RLV-DSC-2)

Submitted: June 22, 2011 Decided: July 1, 2011

Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dennis E. Jones, DENNIS E. JONES & ASSOCIATES, P.C., Lebanon, 

Virginia, for Appellant. Amy Elizabeth Ray, Assistant United 

States Attorney, Asheville, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Rose Mary Brooks pleaded guilty, pursuant to a plea 

agreement, to one count of wire fraud, in violation of 18 U.S.C. 

§ 1343 (2006). The district court sentenced Brooks to 108 

months’ imprisonment and ordered her to pay restitution. 

Brooks appealed,1 and her counsel filed an Anders2

To establish ineffective assistance of counsel, Brooks 

must show that: (1) counsel’s performance fell below an 

objective standard of reasonableness; and (2) counsel’s 

deficient performance was prejudicial. Strickland v. 

Washington, 466 U.S. 668, 687-88 (1984). Claims of ineffective 

assistance of counsel are generally not cognizable on direct 

appeal, unless counsel’s “ineffectiveness conclusively appears 

from the record.” United States v. Baldovinos, 434 F.3d 233, 

brief certifying that there are no meritorious issues for 

appeal but asking this court to review whether Brooks was denied 

effective assistance of counsel when trial counsel failed to 

investigate and develop mitigating evidence concerning Brooks’

mental illness. Brooks has not filed a pro se supplemental 

brief, though informed of her right to do so.

 1 Brooks did not initially file an appeal. However, the 

district court granted her 28 U.S.C.A. § 2255 (West Supp. 2010) 

motion in part, in order to afford her a direct appeal.

2 Anders v. California, 386 U.S. 738 (1967). 
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239 (4th Cir. 2006). As counsel notes, “in most cases a motion 

brought under § 2255 is preferable to direct appeal for deciding 

claims of ineffective assistance.” Massaro v. United States, 

538 U.S. 500, 504 (2003). Typically, as here, “[w]hen an 

ineffective-assistance claim is brought on direct appeal, 

appellate counsel and the court must proceed on a trial record 

not developed precisely for the object of litigating or 

preserving the claim and thus often incomplete or inadequate for 

this purpose.” Id. at 504-05. 

The appellate record here falls short of conclusively 

demonstrating deficient performance by counsel below. 

Therefore, we decline to address this claim in this appeal, 

noting that Brooks may pursue it in a motion filed pursuant to 

28 U.S.C.A. § 2255.3

In the course of our Anders review, we have assessed

the Fed. R. Crim. P. 11 plea colloquy and conclude that the 

district court substantially complied with Rule 11’s 

 3 Although Brooks has already filed a § 2255 motion, where, 

as here, “a prisoner’s first § 2255 motion is granted to reenter 

judgment and permit a direct appeal, the counter of collateral 

attacks pursued is reset to zero.” In re Goddard, 170 F.3d 435, 

438 (4th Cir. 1999) (internal quotation marks omitted). In 

reviewing Brooks’ initial § 2255 motion, the district court 

properly dismissed her additional claims without prejudice. 

This will “allow [Brooks] to raise collateral claims in a 

subsequent § 2255 motion filed after the direct appeal is 

concluded.” Id. at 438.
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requirements. We note that the magistrate judge neglected to 

advise Brooks of the court’s obligation to impose a special 

assessment, as required by Rule 11(b)(1)(L). However, the 

omission did not affect Brooks’ substantial rights, Rule 11(h),

because she agreed to pay the special assessment as part of her 

plea agreement and the Government reviewed this provision during 

the Rule 11 colloquy.

In accordance with Anders, we have thoroughly reviewed 

the entire record in this case and have found no meritorious 

issues for appeal. We therefore affirm Brooks’ conviction and 

sentence. This court requires that counsel inform Brooks, in 

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

United States for further review. If Brooks 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 Brooks.

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