United States v. Hester

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 24, 1999
• Docket: 98-20771
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20771 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY LYNN HESTER,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-96-CR-250-1 -------------------- November 18, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Anthony Lynn Hester appeals the dismissal of his motion for

a new trial filed pursuant to Fed. R. Crim. P. 33. He criticizes

the district court for finding meritless his claim that he was

denied effective assistance of counsel because one of the

attorneys representing him at trial was laboring under a conflict

of interests. This conflict of interests, he urges, impugns the

validity of his guilty plea. He also asserts, for the first

time, that his appellate counsel rendered ineffective assistance

by withdrawing pursuant to Anders v. California, 386 U.S. 738

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-20771 -2-

(1967), and that the other attorney representing him at trial

also rendered ineffective assistance. Lastly, he seeks to

challenge the district court’s application of the sentencing

guidelines. Hester has also filed motions to strike the

Government’s pleadings and for sanctions against the clerk of

this court.

Hester’s guilty plea forecloses Rule 33 as a means of

attacking the validity of that plea or the resulting conviction.

See Williams v. United States, 290 F.2d 217, 218 (5th Cir. 1961).

Now that sentence has been imposed, Hester may seek to withdraw

his guilty plea only through direct appeal or proceedings under

§ 2255. See Fed. R. Crim. P. 32(e). Although he has waived his

right to seek collateral relief, he may yet challenge the

validity of this waiver through a § 2255 motion. See United

States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). As Hester

has not contested the validity of the waiver in his Rule 33

motion, we decline to treat his motion as a § 2255 motion. See

Williams, 290 F.2d at 218. The denial of Hester’s Rule 33 motion

is therefore AFFIRMED. Hester’s other motions are DENIED.