United States v. Mitchell

323 F. App'x 380

Opinion

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

FILED April 30, 2009 No. 08-10683 Conference Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

HARVEY LEE MITCHELL, JR

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:08-CR-32-ALL

Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges. PER CURIAM:* The Federal Public Defender appointed to represent Harvey Lee Mitchell, Jr., has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Mitchell has filed a response. The record is insufficiently developed to allow consideration at this time of Mitchell’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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10683

allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation omitted). Our independent review of the record, counsel’s brief, and Mitchell’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2.