USA v. Eric Alberty

Filing

UNPUBLISHED OPINION FILED. [12-40054 Dismissed as Frivolous] Judge: CDK , Judge: EBC , Judge: CH Mandate pull date is 03/12/2013 for Appellant Eric Lamont Alberty; granting motion to withdraw as counsel filed by Mr. John Hunter Smith, Esq. [7143169-2] [12-40054]

Case: 12-40054

Document: 00512146817

Page: 1

Date Filed: 02/19/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-40054
Conference Calendar

February 19, 2013
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERIC LAMONT ALBERTY,
Defendant-Appellant

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:09-CR-197-2

Before KING, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Eric Lamont Alberty has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Alberty has filed a response and moved for the appointment of new counsel. We
have reviewed counsel’s brief and the relevant portions of the record reflected
therein, as well as Alberty’s response. We concur with counsel’s assessment that
the appeal presents no nonfrivolous issue for appellate review. The record is
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 12-40054

Document: 00512146817

Page: 2

Date Filed: 02/19/2013

No. 12-40054
insufficiently developed to allow consideration at this time of Alberty’s claims of
ineffective assistance of counsel; such claims generally “cannot be resolved on
direct appeal when [they have] not been raised before the district court since no
opportunity existed to develop the record on the merits of the allegations.”
United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal
quotation marks and citation omitted). Accordingly, the motion for leave to
withdraw is GRANTED, counsel is excused from further responsibilities herein,
and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. Alberty’s motion for
appointment of new counsel is DENIED.

2