United States v. Levi ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40356
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY LEVI,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CR-145-1
_________________________________________
January 4, 2001
Before POLITZ, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Henry Levi has moved
for leave to withdraw, filing a brief in accordance with Anders v. California.1 Levi
was notified of counsel’s motion and brief, and he has filed a reply together with a
motion for appointment of new 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
386 U.S. 738 (1967).
Levi maintains that he received ineffective assistance of counsel. A claim of
ineffective assistance of counsel cannot be resolved on direct appeal when it has not
first been raised in the district court.2 The district court understandably made no
factual findings regarding the newly advanced allegations of ineffective assistance.
It is manifest that an analysis of this claim would require speculation by this court as
to the reasons for the attorney’s alleged acts and omissions.3 This we decline do.
We do not reach the merits of Levi’s ineffective assistance of counsel claim, without
prejudice to his right to present this matter to the district court via a motion under 28
U.S.C. § 2255.4
Our review of the record, counsel’s brief, and Levi’s reply discloses no non-
frivolous issues for appeal. Consequently, counsel’s motion for leave to withdraw is
GRANTED and counsel is excused from further responsibilities herein. Levi’s
motion for appointment of new counsel is DENIED and the appeal is DISMISSED.
See 5th Cir. R. 42.2.
2
United States v. Bounds, 943 F.2d 541 (5th Cir. 1991).
3
United States v. Kizzee, 150 F.3d 497 (5th Cir. 1998).
4
United States v. Henderson, 72 F.3d 463 (5th Cir. 1995).
2