USA v. Ray, No. 08-40093 (5th Cir. 2009)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-40093 Conference Calendar June 30, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. JERALD GUY RAY Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:07-CR-1-1 Before SMITH, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* The attorney appointed to represent Jerald Guy Ray has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Ray has filed a response and has also filed a motion for appointment of counsel. The record is insufficiently developed to allow consideration at this time of Ray 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 opportunity existed to develop the record * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40093 on the merits of the allegations. United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation omitted). So, too, is Ray s claim of mental incapacity. Although the district court record suggests Ray may have suffered from Post-Traumatic Stress Disorder (PTSD), the record does not contain evidence that the PTSD rendered Ray unable to understand the nature and consequences of the proceedings. 18 U.S.C. § 4241(d). The current record does not support an appellate argument that the district court failed to comply with its duty to ascertain Ray s competence to understand rationally the proceedings. United States v. Sparks, 2 F.3d 574, 584 (5th Cir. 1993). Our independent review of the record, counsel s brief, and Ray 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. Ray s motion for appointment of counsel is DENIED. 2

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