United States v. Victor Hernandez

Case: 09-10334 Document: 00511149729 Page: 1 Date Filed: 06/22/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED

June 22, 2010 No. 09-10334

Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee v.

VICTOR RUIZ HERNANDEZ,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:06-CR-192-7

Before JOLLY, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

The attorney appointed to represent Victor Ruiz Hernandez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Hernandez has filed a response. The record is insufficiently developed to allow consideration at this time of Hernandez’s claim of ineffective assistance of counsel; such a claim generally “cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the Case: 09-10334 Document: 00511149729 Page: 2 Date Filed: 06/22/2010 No. 09-10334 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 Hernandez’s response discloses no nonfrivolous issue for appeal. Accordingly, the 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.

Hernandez’s motion for appointment of substitute counsel is DENIED.