United States v. Kirks ( 1999 )

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
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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, 386 U.S. 738 (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that this opinion should not be published and is not precedent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, 832 F.2d 312, 314
(5th Cir. 1987). Any ineffective assistance of counsel claim
that Kirks wishes to bring may be raised in a 28 U.S.C. § 2255motion. See United States v. Pierce, 959 F.2d 1297, 1301 (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.