United States v. Martinez-Montoya

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 4, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50617
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MONCLAVIO BORJORQUE MARTINEZ-MONTOYA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
(7:02-CR-101-1)
--------------------
Before JONES, WIENER, and DeMOSS, Circuit Judges
PER CURIAM:*
The attorney appointed to represent Defendant-Appellant
Monclavio Borjorque Martinez-Montoya has filed a motion for leave
to withdraw as counsel for appellant in this appeal and has filed
a brief as required by Anders v. California, 386 U.S. 738 (1967).
Martinez-Montoya has filed a pro se response and argues, inter
alia, that counsel rendered ineffective assistance by failing to
object on the basis of the Sixth Amendment and Apprendi v. New
Jersey, 530 U.S. 466 (2000). We decline to address Martinez-

-- 1 of 2 --

2
Montoya’s claim of ineffective assistance of counsel on direct
appeal, without prejudice, however, to his raising those claims in
a 28 U.S.C. § 2255 motion. See Massaro v. United States, 538 U.S.
500, 508 (2003).
Our independent review of the briefs, the record, and
Martinez-Montoya’s responses 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 5TH CIR. R. 42.2.

-- 2 of 2 --