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United States v. Sierra, 05-50516 (2006)

Court: Court of Appeals for the Fifth Circuit Number: 05-50516 Visitors: 37
Filed: Jun. 21, 2006
Latest Update: Feb. 21, 2020
Summary: 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. - Appeal from the United States District Court for the Western District of Texas USDC No. 2:04-CR-175-2 - Before STEWART, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* Emil Eugenio Sierra, who is represented by a
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                                                        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.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                        USDC No. 2:04-CR-175-2
                         --------------------

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this opinion should not be published and is not precedent except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.

Source:  CourtListener

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