United States v. Smith

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-10423 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CAROLE RUTH SMITH,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:92-CR-500-D - - - - - - - - - - February 11, 1998 Before JONES, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

Carole Ruth Smith, federal prisoner # 23664-077, appeals the

judgment of the district court denying her motion to vacate, set

aside, or correct sentence under 28 U.S.C. § 2255. She raises

the sole issue whether the district court erred in denying relief

on her claim that she received ineffective assistance of counsel

at trial.

The record before the court is inadequate to accomplish

meaningful appellate review. See United States v. Pierce, 959

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-10423 -2-

F.2d 1297, 1301 (5th Cir. 1992) (citing inter alia United States

v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987)). Smith’s claims

of ineffective assistance of counsel are not procedurally barred

because, as a general rule, they cannot be resolved on direct

appeal unless a record exists to evaluate such a claim. Id. In

this case the record has not been developed in the district

court. Accordingly, we VACATE the judgment of the district court

and REMAND the case to afford the district court an opportunity

to address Smith’s claims. The motion for bail pending appeal is

DENIED.

VACATED AND REMANDED; BAIL PENDING APPEAL DENIED.