United States v. Garcia-Orrantia , 326 F. App'x 833 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2009
No. 08-50811
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OLAYA GARCIA-ORRANTIA, also known as Sandra Garcia
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-720-ALL
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Olaya Garcia-Orrantia has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967). Garcia-Orrantia has filed a response in which she moves
for the appointment of new appellate counsel and alleges ineffective assistance
of plea counsel and appellate counsel.
The record is insufficiently developed to allow consideration at this time
of Garcia-Orrantia’s claim of ineffective assistance of counsel; such claims
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50811
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.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th
Cir. 2006) (internal quotation marks and citation omitted). Because she waited
until after an Anders brief was filed, Garcia-Orrantia’s motion for appointment
of new counsel is DENIED as untimely. Cf. United States v. Wagner, 158 F.3d
901, 902-03 (5th Cir. 1998).
Our independent review of the record, counsel’s brief, and Garcia-
Orrantia’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 5 TH C IR.
R. 42.2.
2