United States v. Payton

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2009
No. 08-40295
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
WARREN PAYTON, JR
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:07-CR-81-ALL
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Warren Payton, Jr.,
has moved for leave to withdraw and has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967). Payton has filed a response. The record is
insufficiently developed to allow consideration at this time of Payton’s claims of
ineffective assistance of counsel; such claims generally “cannot be resolved on
direct appeal when [they have] not been raised before the district court since no
opportunity existed to develop the record on the merits of the allegations.”
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40295
United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal
quotation marks and citation omitted). Our independent review of the record,
counsel’s brief, and Payton’s response discloses no nonfrivolous issue for appeal.
Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused
from further responsibilities herein, and the APPEAL IS DISMISSED. See
5 TH C IR. R. 42.2. Payton’s motion for the appointment of new counsel is
DENIED.
2