USA v. Kenneth Winningham, No. 10-40032 (5th Cir. 2010)

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Case: 10-40032 Document: 00511315263 Page: 1 Date Filed: 12/08/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-40032 Conference Calendar December 8, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. KENNETH WINNINGHAM, also known as Kenneth Shuland, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:06-CR-5-1 Before KING, BENAVIDES, and PRADO, Circuit Judges. PER CURIAM:* The attorney appointed to represent Kenneth Winningham on appeal has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Winningham has filed a response and a motion for the appointment of new counsel. The record is insufficiently developed to allow consideration at this time of Winningham 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 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 10-40032 Document: 00511315263 Page: 2 Date Filed: 12/08/2010 No. 10-40032 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 Winningham 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. Winningham s motion for the appointment of counsel is DENIED. 2

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