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

                                                 FILED
                                                                            June 30, 2009
                                     No. 08-40093
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JERALD GUY RAY

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:07-CR-1-1


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       The attorney appointed to represent Jerald Guy Ray has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967).       Ray has filed a response and has also filed a motion for
appointment of counsel.          The record is insufficiently developed to allow
consideration at this time of Ray’s claim of ineffective assistance of counsel; such
claims generally “cannot be resolved on direct appeal when [they have] not been
raised before the district court since no opportunity existed to develop the record

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40093

on the merits of the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091
(5th Cir. 2006) (internal quotation marks and citation omitted).
      So, too, is Ray’s claim of mental incapacity. Although the district court
record suggests Ray may have suffered from Post-Traumatic Stress Disorder
(PTSD), the record does not contain evidence that the PTSD rendered Ray
“unable to understand the nature and consequences of the proceedings.” 18
U.S.C. § 4241(d). The current record does not support an appellate argument
that the district court failed to comply with its duty to ascertain Ray’s
competence to understand rationally the proceedings. United States v. Sparks,
2 F.3d 574, 584 (5th Cir. 1993).
      Our independent review of the record, counsel’s brief, and Ray’s response
discloses no nonfrivolous issue for appeal. Accordingly, the motion for leave to
withdraw is GRANTED, counsel is excused from further responsibilities herein,
and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2. Ray’s motion for
appointment of counsel is DENIED.




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