USA v. Kevin Smith

Filing

UNPUBLISHED OPINION FILED. [09-41195 Dismissed as frivolous ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/29/2010 for Appellant Kevin Moran Smith; granting motion to withdraw as counsel filed by Attorney Mrs. Heather Jean Barbieri for Appellant Mr. Kevin Moran Smith [6482830-2] [09-41195]

USA v. Kevin Smith Case: 09-41195

Document: 00511284776 Page: 1 Date Filed: 11/04/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41195 S u m m a r y Calendar November 4, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. K E V I N MORAN SMITH, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 4:08-CR-107-7

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* T h e attorney appointed to represent Kevin Moran Smith has moved for le a v e to withdraw and has filed a brief in accordance with Anders v. California, 3 8 6 U.S. 738 (1967). Smith has filed a response. The record is insufficiently d e v e lo p e d to allow consideration at this time of Smith's claim of ineffective a s s is t a n c e of counsel; such claims generally "cannot be resolved on direct appeal w h e n [they have] not been raised before the district court since no opportunity

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

Case: 09-41195 Document: 00511284776 Page: 2 Date Filed: 11/04/2010 No. 09-41195 e x is t e d to develop the record on the merits of the allegations." United States v. C a n tw e l l , 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and c it a t io n omitted). Our independent review of the record, counsel's brief, and S m it h 's response discloses no nonfrivolous issue for appeal. Accordingly, the m o t io n for leave to withdraw is GRANTED, counsel is excused from further r e s p o n s ib ilit ie s herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.

2