IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40239 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

JOEY LYNN KIRKS, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:98-CR-118-1 --------------------

November 11, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

The Federal Public Defender appointed to represent Joey Lynn

Kirks has moved for leave to withdraw and has filed a brief as

required by Anders v. California,

(1967). Kirks has

filed a brief in response to the motion in which he argues that

he was denied the effective assistance of counsel.**

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ** Kirks raised the issue of ineffective assistance of counsel for the first time in his response to his attorney’s Anders motion; the record contains no factual findings on the issue of counsel’s alleged deficiencies. Kirks’s case does not represent one of the rare instances where the record allows this court to evaluate fairly the merits of an ineffectiveness claim on direct appeal. See United States v. Higdon,

(5th Cir. 1987). Any ineffective assistance of counsel claim that Kirks wishes to bring may be raised in a

motion. See United States v. Pierce,

(5th Cir. 1992). No. 99-40239 -2-

Our independent review of the brief filed by counsel, of

Kirks’s response to that brief, and of the record reveals no

nonfrivolous issue for appeal. Accordingly, counsel’s motion for

leave to withdraw is GRANTED, counsel is excused from further

responsibilities, and the APPEAL IS DISMISSED.