United States v. Rudd , 210 F. App'x 444 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 20, 2006
Charles R. Fulbruge III
Clerk
No. 06-10183
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE CHARLES RUDD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-133
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Willie Charles Rudd pleaded guilty to one count of being a
felon in possession of a firearm. He now challenges the appeal
waiver in his guilty plea agreement and argues that he received
ineffective assistance of counsel. The Government has filed a
motion to dismiss the appeal or for summary affirmance, or, in
the alternative, for an extension of time.
Because Rudd’s ineffective assistance claim falls within an
exception to his appeal waiver, it is unnecessary for this court
to address the validity of the waiver and we decline to do so.
*
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this opinion should not be published and is not precedent except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. 06-10183
-2-
We have held “that a claim of ineffective assistance of
counsel generally cannot be addressed on direct appeal unless the
claim has been presented to the district court; otherwise there
is no opportunity for the development of an adequate record on
the merits of that serious allegation.” United States v.
Navejar, 963 F.2d 732, 735 (5th Cir. 1992) (citing United States
v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987)). Rudd did not
raise the claim below and record has not been developed on the
issue. Therefore, we do not consider this assignment of error.
Rudd asserts in a footnote that “the three convictions upon
which he was sentenced as an Armed Career Criminal were
insufficient for such treatment.” A “single conclusory sentence
in a footnote is insufficient to raise [that] argument for
review.” United States v. Charles, No. 06-30324, ___ F.3d ___,
___ (5th Cir. Nov. 3, 2006) (citing Beazley v. Johnson, 242 F.3d
248, 270 (5th Cir. 2001)). Rudd has waived the argument.
The judgment of the district court is summarily affirmed.
We do so without prejudice to Rudd’s right to raise the issue of
ineffective assistance of counsel in a proper proceeding under 28
U.S.C. § 2255. See United States v. Rodriguez, 582 F.2d 1015,
1016 (5th Cir. 1978).
AFFIRMED; MOTION GRANTED.