United States v. Melcher

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-40822 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PURNIE JUNIOR MELCHER,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. CR-C-94-165 - - - - - - - - - - June 27, 1996 Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Purnie Junior Melcher appeals his conviction for possession

of 305 kilograms of marihuana with intent to distribute in

violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). Melcher

argues his trial counsel was ineffective for failing to submit to

the jury evidence of Melcher’s post-traumatic stress disorder.

“The general rule in this circuit is that a claim of ineffective

assistance of cousel cannot be resolved on direct appeal when the

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-40822 - 2 -

claim has not been raised before the district court since no

opportunity existed to develop the record on the merits of the

allegations.” United States v. Higdon, 832 F.2d 312, 313-14 (5th

Cir. 1987), cert. denied, 484 U.S. 1075 (1988). The record is

void of any evidence concerning trial counsel’s reasoning or

intentions in adopting the particular trial strategy pursued.

Further, the evidence of record relating to Melcher’s illness is

an insufficient basis on which to evaluate the merits of his

claim that his nervous appearance upon being confronted by a

border patrol officer owed itself to his medical condition rather

than to guilty knowledge. The conviction is affirmed without

prejudice to Melcher’s ability to raise the ineffectiveness of

trial counsel in a motion under 28 U.S.C. § 2255.

AFFIRMED.