United States v. McCrary

* 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that this opinion should not be published and is not precedent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
December 10, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10100
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLOYD FREDERICK MCCRARY,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-119-1-R
--------------------
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
The Federal Public Defender (FPD), court-appointed appellate
counsel for defendant Floyd Frederick McCrary, has moved for
leave to withdraw and has filed a brief as required by Anders
v. California, 386 U.S. 738 (1967). McCrary has filed a “Motion
to Find Legal Points Arguable on the Merits,” which is treated,
in part, as a motion for the appointment of counsel.
Our independent review of the brief and the record
discloses no nonfrivolous issues for appeal. The FPD’s motion

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No. 03-10100
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for leave to withdraw is GRANTED, the FPD is excused from further
responsibilities, and the appeal is DISMISSED. See 5TH CIR.
R. 42.2. Because there is no nonfrivolous issue for appeal,
McCrary’s motion for the appointment of counsel is DENIED. Cf.
United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
We decline to address the ineffective assistance claims
raised by McCrary in this proceeding. See United States v.
Brewster, 137 F.3d 853, 859 (5th Cir. 1998). Our decision is
without prejudice to McCrary’s right to assert such claims in a
motion pursuant to 28 U.S.C. § 2255. See Massaro v. United
States, ___ U.S. ___, 123 S. Ct. 1690, 1694 (2003).
ANDERS MOTION GRANTED; APPEAL DISMISSED; MOTION FOR THE
APPOINTMENT OF COUNSEL DENIED.

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