     Case: 10-40032 Document: 00511315263 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                     No. 10-40032
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KENNETH WINNINGHAM, also known as Kenneth Shuland,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:06-CR-5-1


Before KING, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
       The attorney appointed to represent Kenneth Winningham on appeal has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Winningham has filed a response and a motion
for the appointment of new counsel. The record is insufficiently developed to
allow consideration at this time of Winningham’s claims 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

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-40032 Document: 00511315263 Page: 2 Date Filed: 12/08/2010

                                 No. 10-40032

develop the record on the merits of the allegations.” United States v. Cantwell,
470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation
omitted).   Our independent review of the record, counsel’s brief, and
Winningham’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.
Winningham’s motion for the appointment of counsel is DENIED.




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