### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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: * D a m i drick Deshone Fearce, represented by cou n s e l , ap p e al s hi s guilty p l e a 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 2 9, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50406 Document: 00511709570 Page: 1 Date Filed: 12/29/2011No. 11-50406

out-of-time appeal and dismissed his remaining § 2255 cl aims without prejudice. The district court, however, di d not reenter the judgment of conviction. Thus, Fearce’s instant notice of appeal was filed more than three years after the

o riginal criminal judgment was entered against him and before the ree n t ry o f the criminal judgment, and it is untimely. See U n ited S ta tes v. W

e s t , 240 F.3d 456, 459–60 (5th Cir. 2001); see also F E D
. R. AP P
. 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 n o t 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 r eport which Fearce says overstated the seriousness of his criminal history and impermissibly and

e rro n e ously double counted convictions and criminal history points. He conten d s that, as result of counsel’s deficient performance, the di s t ri c t c o urt imposed a sentence that was both procedurally and sub s t antively unreasonable for a variety of reasons. T h e record has not been sufficiently developed to allow consideration o f Fearce ’ s c laims 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, 50 4

–0 6 ( 2 0 0 3). 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 dir e ct ap p e al

. See U n i te d States v. Orozco-Ramirez , 211 F.3d 8 6 2 , 871 n.15 (5th Cir. 2000). Fearce has the option of presenting any previously raised, but unadjudicated, claims of ineffective assistance of counsel t o t h e district court for consideration on the merits. See id. We expres s n o opinion as to which claims Fearce can successfully assert as oppos e d t o others that may be barred by AEDPA's restrictions on “second or successive” motions. See id. at 867–68; see also28 U.S.C. § 2244. AFFIRMED.

3 Case: 11-50406 Document: 00511709570 Page: 3 Date Filed: 12/29/2011