IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50406

Summary Calendar

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:*

DamidrickDeshone 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

United States Court of Appeals

Fifth Circuit

F I L E D

December 29, 2011

Lyle W. Cayce

Clerk

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

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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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