IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-51262 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PATRICIA TEALER,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas 1:01-CR-124-ALL-SS -------------------- October 9, 2002

Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Patricia Tealer appeals her guilty-plea

conviction for possession with intent to distribute cocaine base.

Tealer contends that her counsel misinformed her of the sentence

she would receive following her guilty plea, constituting

ineffective assistance, and that in turn this misinformation

rendered her plea involuntary. Tealer asserts further that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. substitute counsel was also ineffective in failing to file a motion

to withdraw her plea because of prior counsel’s ineffectiveness.

Generally, a Sixth Amendment claim of ineffective assistance

of counsel may not be raised on direct appeal unless the district

court has addressed the issue. United States v. Scott,

(5th Cir. 1998). If the defendant raises such a claim for

the first time on appeal, we shall reach the merits only when the

record is sufficiently developed to permit a fair evaluation of the

defendant’s allegations. United States v. Higdon,

(5th Cir. 1987). In this case, the record is sufficiently

developed for us to address Tealer’s ineffective-assistance-of-

counsel claims, which we do.

To prevail on a claim of ineffective assistance of counsel,

the defendant must show that (1) counsel’s performance was

deficient, and (2) the deficient performance prejudiced the

defense. Strickland v. Washington,

(1984). The

two-part Strickland test applies when a guilty plea is challenged

on the basis of ineffective assistance of counsel. Hill v.

Lockhart,

(1985).

A guilty plea must be knowing, voluntary, and intelligent.

Hobbs v. Blackburn,

(5th Cir. 1985). Before

accepting a guilty plea, a trial court must ascertain that the

defendant “has a full understanding of what the plea connotes and

of its consequence.” Boykin v. Alabama,

(1969).

In a post-plea situation, the defendant bears the burden of

2 establishing the invalidity of his guilty plea. Bonvillain v.

Blackburn,

(5th Cir. 1986).

A review of the instant record establishes that Tealer was

properly advised of the applicable punishment range and that her

sentence would be determined in accordance with the Sentencing

Guidelines. The record also reveals that she had reviewed and

understood her plea agreement. Nothing in the record suggests that

her counsel was ineffective, so Tealer’s plea cannot be found to

have been involuntary on that score. Furthermore, even if Tealer’s

attorney had misadvised her regarding her likely sentence, that is

not the kind of mistake that can vitiate a guilty plea. See United

States v. Gracia,

(5th Cir. 1993)(contention that

defense counsel misinformed defendant about likely sentence is not

sufficient to set aside guilty plea when the trial court properly

advised the defendant regarding the possible maximum sentence).

As there is no basis for concluding that Tealer’s plea was

involuntary, her substitute counsel could not have failed to

provide effective assistance by not filing a motion to have

Tealer’s plea withdrawn. See Koch v. Puckett,

(5th Cir. 1990) (in context of ineffective assistance claim,

counsel is not required to make futile motions or objections).

Accordingly, Tealer’s conviction based on her guilty plea is

AFFIRMED. S:\OPINIONS\UNPUB\01\01-51262.0.wpd 4/29/04 7:13 pm

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