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United States v. Hester, 98-20771 (1999)

Court: Court of Appeals for the Fifth Circuit Number: 98-20771 Visitors: 22
Filed: Nov. 24, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-20771 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY LYNN HESTER, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-96-CR-250-1 - November 18, 1999 Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Anthony Lynn Hester appeals the dismissal of his motion for a new trial filed pursuant to Fed. R. Crim. P. 33. He criti
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                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 98-20771
                          Summary Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

ANTHONY LYNN HESTER,

                                          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-96-CR-250-1
                      --------------------
                        November 18, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Anthony Lynn Hester appeals the dismissal of his motion for

a new trial filed pursuant to Fed. R. Crim. P. 33.      He criticizes

the district court for finding meritless his claim that he was

denied effective assistance of counsel because one of the

attorneys representing him at trial was laboring under a conflict

of interests.   This conflict of interests, he urges, impugns the

validity of his guilty plea.   He also asserts, for the first

time, that his appellate counsel rendered ineffective assistance

by withdrawing pursuant to Anders v. California, 
386 U.S. 738

     *
        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that this opinion should not be published and is not precedent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. 98-20771
                                  -2-

(1967), and that the other attorney representing him at trial

also rendered ineffective assistance.       Lastly, he seeks to

challenge the district court’s application of the sentencing

guidelines.   Hester has also filed motions to strike the

Government’s pleadings and for sanctions against the clerk of

this court.

     Hester’s guilty plea forecloses Rule 33 as a means of

attacking the validity of that plea or the resulting conviction.

See Williams v. United States, 
290 F.2d 217
, 218 (5th Cir. 1961).

Now that sentence has been imposed, Hester may seek to withdraw

his guilty plea only through direct appeal or proceedings under

§ 2255.   See Fed. R. Crim. P. 32(e).   Although he has waived his

right to seek collateral relief, he may yet challenge the

validity of this waiver through a § 2255 motion.       See United

States v. Wilkes, 
20 F.3d 651
, 653 (5th Cir. 1994).       As Hester

has not contested the validity of the waiver in his Rule 33

motion, we decline to treat his motion as a § 2255 motion.          See

Williams, 290 F.2d at 218
.    The denial of Hester’s Rule 33 motion

is therefore AFFIRMED.   Hester’s other motions are DENIED.

Source:  CourtListener

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