USA v. Homero Martinez

Filing

UNPUBLISHED OPINION FILED. [13-10346 Dismissed as Frivolous] Judge: JES, Judge: JLW, Judge: JWE Mandate pull date is 08/26/2014 for Appellant Homero Martinez; denying motion to proceed pro se filed by Appellant Mr. Homero Martinez [7620693-3]; denying motion to strike brief filed by Appellant Mr. Homero Martinez [7620693-4]; granting motion to withdraw as counsel filed by Mr. Raul Antonio Canez [7479619-2] [13-10346]

Case: 13-10346

Document: 00512722696

Page: 1

Date Filed: 08/05/2014

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

FILED
No. 13-10346
Summary Calendar

August 5, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HOMERO MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-209-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Homero Martinez 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).
Martinez has filed a pro se response, which includes a motion for leave
to proceed pro se on appeal (or to allow him to proceed with retained counsel)
and to strike counsel’s Anders brief. To the extent he seeks leave to proceed

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10346

Document: 00512722696

Page: 2

Date Filed: 08/05/2014

No. 13-10346
with retained counsel, a judge of this court has previously denied a similar
motion to substitute retained counsel. See United States v. Martinez, No. 1310346 (5th Cir. Mar. 26, 2014). We now DENY his motions for leave to

proceed pro se and to strike counsel’s Anders brief as untimely filed. See
United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
In his response, Martinez argues that he received ineffective assistance
of counsel at sentencing. The record is not sufficiently developed to allow us to
make a fair evaluation of Martinez’s claim of ineffective assistance; we
therefore decline to consider the claim without prejudice to collateral review.
See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014), petition for cert.
filed (June 4, 2014) (No. 13-10484).
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as the remainder of Martinez’s response. We concur
with counsel’s assessment that the appeal presents no nonfrivolous issue for
appellate review. 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.

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