United States v. Hester ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20771
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY LYNN HESTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CR-250-1
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November 18, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Anthony Lynn Hester appeals the dismissal of his motion for
a new trial filed pursuant to Fed. R. Crim. P. 33. He criticizes
the district court for finding meritless his claim that he was
denied effective assistance of counsel because one of the
attorneys representing him at trial was laboring under a conflict
of interests. This conflict of interests, he urges, impugns the
validity of his guilty plea. He also asserts, for the first
time, that his appellate counsel rendered ineffective assistance
by withdrawing pursuant to Anders v. California, 386 U.S. 738
*
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that this opinion should not be published and is not precedent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. 98-20771
-2-
(1967), and that the other attorney representing him at trial
also rendered ineffective assistance. Lastly, he seeks to
challenge the district court’s application of the sentencing
guidelines. Hester has also filed motions to strike the
Government’s pleadings and for sanctions against the clerk of
this court.
Hester’s guilty plea forecloses Rule 33 as a means of
attacking the validity of that plea or the resulting conviction.
See Williams v. United States, 290 F.2d 217, 218 (5th Cir. 1961).
Now that sentence has been imposed, Hester may seek to withdraw
his guilty plea only through direct appeal or proceedings under
§ 2255. See Fed. R. Crim. P. 32(e). Although he has waived his
right to seek collateral relief, he may yet challenge the
validity of this waiver through a § 2255 motion. See United
States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). As Hester
has not contested the validity of the waiver in his Rule 33
motion, we decline to treat his motion as a § 2255 motion. See
Williams, 290 F.2d at 218. The denial of Hester’s Rule 33 motion
is therefore AFFIRMED. Hester’s other motions are DENIED.