     Case: 11-50406     Document: 00511709570         Page: 1     Date Filed: 12/29/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 29, 2011
                                     No. 11-50406
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAMIDRICK DESHONE FEARCE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:07-CR-41-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Damidrick Deshone Fearce, represented by counsel, appeals his guilty plea
conviction for conspiracy to possess with intent to distribute 50 grams or more
of cocaine base (crack) within 1,000 feet of a school or playground. Fearce did not
file a timely notice of appeal after the district court sentenced him to 240 months
of imprisonment. He later initiated 28 U.S.C. § 2255 proceedings, challenging,
among other things, his trial counsel’s effectiveness for not filing a direct appeal
despite a request to do so. The district court granted Fearce the right to file an

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-50406

out-of-time appeal and dismissed his remaining § 2255 claims without prejudice.
The district court, however, did not reenter the judgment of conviction. Thus,
Fearce’s instant notice of appeal was filed more than three years after the
original criminal judgment was entered against him and before the reentry of
the criminal judgment, and it is untimely. See United States v. West, 240 F.3d
456, 459–60 (5th Cir. 2001); see also FED. R. APP. P. 4(b)(1)(A). However, the time
limit for filing a criminal appeal is not jurisdictional and can be waived. United
States v. Martinez, 496 F.3d 387, 388–89 (5th Cir. 2007). Because the
Government does not oppose Fearce’s out-of-time appeal, it has waived the
application of Rule 4(b). Accordingly, we may address Fearce’s appeal.
      Fearce argues that he was denied effective assistance of trial counsel who
Fearce alleges (1) advised him to plead guilty without informing him of all the
essential elements of the charges to which he was pleading; (2) promised him he
would receive a ten-year sentence in exchange for giving up his rights to a jury
trial; and (3) failed to challenge the presentence report which Fearce says
overstated the seriousness of his criminal history and impermissibly and
erroneously double counted convictions and criminal history points. He contends
that, as result of counsel’s deficient performance, the district court imposed a
sentence that was both procedurally and substantively unreasonable for a
variety of reasons.
      The record has not been sufficiently developed to allow consideration of
Fearce’s claims of ineffective assistance of trial counsel, and Fearce has not
shown that this court should make an exception to the general rule that such
claims generally are not resolved on direct appeal. See United States v. Cantwell,
470 F.3d 1087, 1091 (5th Cir. 2006). A postconviction motion pursuant to § 2255
is the appropriate vehicle for Fearce’s claims that trial counsel was ineffective.
See Massaro v. United States, 538 U.S. 500, 504–06 (2003). We note, however,
that Fearce has already raised at least one similar claim before the district court
in his initial § 2255 motion which was dismissed without prejudice pending the

                                        2
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                                 No. 11-50406

outcome of his reinstated direct appeal. See United States v. Orozco-Ramirez, 211
F.3d 862, 871 n.15 (5th Cir. 2000). Fearce has the option of presenting any
previously raised, but unadjudicated, claims of ineffective assistance of counsel
to the district court for consideration on the merits. See id. We express no
opinion as to which claims Fearce can successfully assert as opposed to others
that may be barred by AEDPA's restrictions on “second or successive” motions.
See id. at 867–68; see also 28 U.S.C. § 2244.
      AFFIRMED.




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