United States v. Smith ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10423
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CAROLE RUTH SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:92-CR-500-D
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February 11, 1998
Before JONES, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Carole Ruth Smith, federal prisoner # 23664-077, appeals the
judgment of the district court denying her motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255. She raises
the sole issue whether the district court erred in denying relief
on her claim that she received ineffective assistance of counsel
at trial.
The record before the court is inadequate to accomplish
meaningful appellate review. See United States v. Pierce, 959
*
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that this opinion should not be published and is not precedent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. 97-10423
-2-
F.2d 1297, 1301 (5th Cir. 1992) (citing inter alia United States
v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987)). Smith’s claims
of ineffective assistance of counsel are not procedurally barred
because, as a general rule, they cannot be resolved on direct
appeal unless a record exists to evaluate such a claim. Id. In
this case the record has not been developed in the district
court. Accordingly, we VACATE the judgment of the district court
and REMAND the case to afford the district court an opportunity
to address Smith’s claims. The motion for bail pending appeal is
DENIED.
VACATED AND REMANDED; BAIL PENDING APPEAL DENIED.