USA v. Ayers, No. 07-40653 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-40653 Conference Calendar December 10, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ROBERT WILLIAM AYERS, III Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:07-CR-57-3 Before DAVIS, WIENER, and PRADO, Circuit Judges. PER CURIAM:* The attorney appointed to represent Robert William Ayers, III, has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Ayers has filed a response. The record is insufficiently developed to allow consideration at this time of Ayers s claim 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 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40653 opportunity existed to develop the record on the merits of the allegations. 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 Ayers s response discloses no nonfrivolous issue for appeal. Accordingly, counsel s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. Ayers s motion for the appointment of new counsel and his motion to vacate the district court s judgment and remand the case are DENIED. 2

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