Suryoadi Suryoadi v. Alberto Gonzales

1The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2097
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Donald E. Tooley, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 3, 2007
Filed: July 9, 2007
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Before RILEY, MAGILL, and MELLOY, Circuit Judges.
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PER CURIAM.
Donald E. Tooley (Tooley) appeals the sentence the district court 1 imposed
following his guilty plea conviction for being a felon in possession of ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Finding Tooley was an armed career
criminal, the district court sentenced him to the statutory minimum of 15 years in
prison. See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4. Tooley’s counsel has moved
to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967).

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Counsel challenges one of the predicate offenses underlying Tooley’s armed-career-
criminal status, arguing that stealing a motor vehicle should not automatically be
deemed a “violent felony.” See 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony”
as a crime that is punishable by imprisonment for more than one year and “otherwise
involves conduct that presents a serious potential risk of physical injury to another”).
Tooley has filed a pro se “Motion to Suspend Brief and Briefing Schedule, Withdraw
Counsel and Appoint Appellate Counsel,” in which he argues counsel below was
ineffective, and seeks appointment of new appellate counsel. We reject these
arguments, and affirm the sentence.
Reviewing de novo, see United States v. Burling, 420 F.3d 745, 749 (8th Cir.
2005), we conclude that counsel’s challenge is unavailing. See United States v.
Barbour, 395 F.3d 826, 827-28 (8th Cir. 2005) (ruling under controlling precedent,
a Kansas vehicle theft is violent felony within meaning of § 924(e)). As for Tooley’s
pro se argument, we adhere to the general rule that Tooley must raise his claim of
ineffective assistance of counsel in a 28 U.S.C. § 2255 proceeding, where the record
can be properly developed. See United States v. Hughes, 330 F.3d 1068, 1069 (8th
Cir. 2003).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no non-frivolous issues. We grant counsel’s motion to withdraw,
and we affirm. We also deny Tooley’s pending motion.
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