USA v. Eric Alberty


UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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