Case: 09-10856 Document: 00511093893 Page: 1 Date Filed: 04/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 28, 2010
No. 09-10856
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HERIBERTO DUQUE, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:09-CR-2-2
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Heriberto Duque, Jr.,
has moved for leave to withdraw and has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967). Duque has filed a response. The record is
insufficiently developed to allow consideration at this time of Duque’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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-10856 Document: 00511093893 Page: 2 Date Filed: 04/28/2010
No. 09-10856
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 Duque’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. Duque’s motion for the appointment of substitute counsel is
DENIED. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
2