United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-50516
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMIL EUGENIO SIERRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-175-2
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Emil Eugenio Sierra, who is represented by appointed
counsel, has filed pro se motions asking us to strike the brief
filed by his attorney, hold his appeal in abeyance, and either
appoint new counsel to represent him or grant him leave to
proceed on appeal pro se. Sierra has not established a conflict
of interest or other most pressing circumstances or that the
interests of justice otherwise require relief of counsel in his
case. See Fifth Circuit Plan under the Criminal Justice Act,
*
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this opinion should not be published and is not precedent except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. 05-50516
-2-
§ 5(B). Moreover, Sierra’s motions for the appointment of
substitute counsel or in the alternative to proceed pro se were
made after his attorney filed a brief on his behalf. The motions
are untimely and are denied. Cf. United States v. Wagner, 158
F.3d 901, 902-03 (5th Cir. 1998). Sierra’s requests to strike
the brief filed by his attorney and hold his appeal in abeyance
are also denied.
In the brief filed by his attorney, Sierra argues that he
was denied the effective assistance of counsel because his
attorney failed to raise duress as a defense at his trial and as
a mitigating factor during his sentencing hearing. Sierra asks
us to remand his case to the district court for an evidentiary
hearing concerning his ineffectiveness claims.
Sierra did not raise his ineffective assistance of counsel
claims in the district court, and the record is not sufficiently
developed for us to review the claims. The Supreme Court has
emphasized that a 28 U.S.C. § 2255 motion is the preferred method
for raising claims of ineffective assistance of counsel. Massaro
v. United States, 538 U.S. 500, 504-05 (2003). Accordingly,
Sierra’s motion to remand his case to the district court for an
evidentiary hearing is denied. The district court’s judgment is
affirmed without prejudice to Sierra’s right to raise his
ineffective assistance of counsel claims in a § 2255 motion.
AFFIRMED; MOTIONS DENIED.