[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1967
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS A. GARCIA-RODRIGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Stahl, Circuit Judge.
Juan J. Hernandez Lopez De Victoria on brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco
and Camille Vélez-Rivé, Assistant United States Attorneys, on
brief for appellee.
May 19, 2000
Per Curiam. The sole ground of this appeal is the
appellant's contention that his trial counsel rendered
ineffective assistance and thereby induced him to plead guilty
to a crime that he did not commit. We have held, with a
regularity bordering on the monotonous, that claims of
ineffective assistance of counsel ordinarily cannot make their
debut on direct review of a criminal conviction, but, rather,
must first be presented to, and acted upon by, the trial court.
See United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)
("Since claims of ineffective assistance involve a binary
analysis — the defendant must show, first, that counsel's
performance was constitutionally deficient and, second, that the
deficient performance prejudiced the defense . . . — such claims
typically require the resolution of factual issues that cannot
efficaciously be addressed in the first instance by an appellate
tribunal.") (internal citations omitted); see also United States
v. Berríos, 132 F.3d 834, 841 (1st Cir. 1998); United States v.
McGill, 952 F.2d 16, 19 (1st Cir. 1991); United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989); United States v.
Costa, 890 F.2d 480, 482-83 (1st Cir. 1989); United States v.
Hoyos-Medina, 878 F.2d 21, 22 (1st Cir. 1989); United States v.
Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983). Because the
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appellant's ineffective assistance claim was not raised in the
district court, this rule comes to mind here.
To be sure, a narrow exception to this rule exists
"where the critical facts are not genuinely in dispute and the
record is sufficiently developed to allow reasoned consideration
of an ineffective assistance claim." United States v. Natanel,
938 F.2d 302, 309 (1st Cir. 1991). Here, however, the record is
very scantily developed on the key issues, the subsidiary facts
are uncertain, and the parties' briefs are redolent with the
familiar scents of speculation and surmise. Thus, the
appropriate method for pursuing this claim is through a
collateral proceeding in the district court under 28 U.S.C. §
2255 (1994 & Supp. 1996). See United States v. Soldevila-López,
17 F.3d 480, 485 (1st Cir. 1994); Mala, 7 F.3d at 1063; United
States v. Daniels, 3 F.3d 25, 27 (1st Cir. 1993); McGill, 952
F.2d at 19 n.5; Hunnewell, 891 F.2d at 956 n.1.
One circumstance in this case, however, requires us to
take a special prophylaxis. Like Mala, 7 F.3d at 1064, this
strikes us as the rare occasion on which the appointment of
counsel is warranted for the handling of a section 2255
proceeding. See 18 U.S.C. § 3006A(a)(2)(B) (Supp. 2000)
(stipulating that, if "the interests of justice so require,
representation may be provided [under the Criminal Justice Act]
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for any financially eligible person who . . . is seeking relief
under section ... 2255 of title 28"). We thus direct the
district court, if appellant petitions for section 2255 relief
and demonstrates continued financial eligibility, to appoint
counsel for him under section 3006A(a)(2)(B).
We need go no further. Since the ineffective
assistance issue is not ripe for review, and the appellant
asserts no other grounds for appeal, we dismiss the appeal.
This ruling is without prejudice to the appellant's right to
raise his claim of ineffective assistance in a collateral
proceeding brought pursuant to 28 U.S.C. § 2255. The district
court shall, subject to the Criminal Justice Act's strictures,
appoint counsel for appellant should such a proceeding
eventuate.
It is so ordered.
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