United States v. Dyke

97 F. App'x 199

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 18, 2004
• Docket: Nos. 02-50338, 02-50357
• Status: Published

Opinion

MEMORANDUM

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David Edward Van Dyke appeals his guilty-plea conviction and 46-month sentence for escape, in violation of 18 U.S.C. § 751(a) and telemarketing fraud, in violation of 18 U.S.C. §§ 2, 1341 (mail fraud) and 1343 (wire fraud). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Van Dyke’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. Van Dyke has filed a pro se “Response to Anders Brief’.

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no grounds for relief on direct appeal.

Accordingly, counsel’s motion to withdraw is GRANTED¹ and the district court’s judgment is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Van Dyke’s request for new counsel is denied. We decline to address any ineffective assistance of counsel claim on direct appeal. See United. States v. Hanoum, 33 F.3d 1128, 1131-32 (9th Cir.1994) (observing that ineffective assistance claim is more properly raised by collateral attack under 28 U.S.C. § 2255, because it cannot be advanced without development of facts outside record).