[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
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No. 01-1938
UNITED STATES,
Appellee,
v.
RIGOBERTO VALDÉS, A/K/A "RIGO,"
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
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Before
Torruella, Lynch and Lipez, Circuit Judges.
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Elizabeth A. Howe on brief for appellant.
Thomas F. Klumper, Assistant United States Attorney, Guillermo
Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant
United States Attorney, on brief for appellee.
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June 19, 2002
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Per curiam. In 1995, Rigoberto Valdés was convicted
after a guilty plea of a drug crime. By petition under 28 U.S.C.
§ 2255 (2000), brought on August 4, 1999, Valdés had his right to
appeal reinstated because the district court found that Valdés's
second trial counsel failed to file a timely appeal despite
Valdés's instructions to do so. Valdés now takes that appeal and
uses it to argue that his first trial counsel, who represented him
during the early stages of plea negotiations, provided
constitutionally defective legal representation. See Strickland v.
Washington, 466 U.S. 668 (1984).
Valdés claims that his first trial counsel was
ineffective because that counsel did not tell him of an earlier,
more beneficial offer of a shorter sentence that the government
allegedly made during the plea bargaining. Valdés says he became
aware of this earlier plea offer on the day he accepted the less
favorable plea, April 4, 1995. The first time he raised this as a
legal issue was almost six years later, at the March 2001
evidentiary hearing on his pro se § 2255 petition, when he made a
pro se motion to amend his § 2255 petition to add the ineffective
assistance claim based on his first counsel's performance. This
pro se motion to amend was brought nineteen months after the
initial petition. The magistrate judge outlined the factual
allegations of Valdés's new claim in his report and recommendation,
but said that "[t]he matter was not considered" in his report.
Instead, he recommended that Valdés be resentenced to reinstate his
right to direct appeal.
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At resentencing, Valdés's counsel submitted a motion
presenting grounds for a lesser sentence, including the allegation
that Valdés's first counsel had not communicated the initial
government offer. At the hearing, counsel attempted to raise the
issue, but was cut short by the district judge, who stated "that
is an issue for appeal, if you think. I think the Magistrate
touched on it a little bit but that would be an issue on appeal."
Based on this colloquy and the magistrate judge's report, it is not
clear whether the district court ever denied Valdés's motion to
amend his § 2255 petition to include the ineffective assistance
claim, or whether it merely deferred disposition of the motion.
We typically require that an ineffective assistance claim
be presented first to the district court in a collateral
proceeding, not on direct appeal, so that the pertinent facts may
be developed and found by the district court. United States v.
Ramirez-Benitez, No. 00-1497, 2002 WL 1079361, *7 (1st Cir. June 4,
2002). Both parties urge that we nonetheless consider the
ineffective assistance claim because, in their view, the facts are
simple. The parties are wrong because, whether the facts are
simple or complex, they are disputed, and that dispute needs to be
resolved by the district court in a collateral proceeding, if at
all. The government, for its part, has quite improperly submitted
an affidavit, which was never presented to the trial court,
directly to this court. This court, as the government should know,
is not the initial trier of fact, particularly when the facts are
disputed. Benham v. Lenox Sav. Bank, No. 01-2101, 2002 WL 1080718,
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*2 (1st Cir. June 4, 2002). Valdés has also asked us to remand the
direct appeal to the district court for further fact-finding, but
that is not the correct procedural mechanism for an ineffective
assistance claim that was not raised in his initial petition.
We dismiss the direct appeal as premature on the merits
of the ineffective assistance claim, subject to one limitation.
Based on the colloquy between the district judge and Valdés's
attorney at the sentencing hearing, we construe Valdés's appeal to
include an appeal of the district court's denial or deferral of his
motion to amend the § 2255 petition. Because the factual record is
insufficiently developed for us to consider the merits of the
ineffective assistance claim on direct appeal, we remand the case
for a determination on whether to allow Valdés's motion to amend
his § 2255 claim. Cf. Rodriguez v. United States, 286 F.3d 972,
980-81 (7th Cir. 2002) (motion to amend habeas petition is untimely
unless it is filed within one year statute of limitations, or
relates back to the original filing). If the district court allows
the motion to amend, it should determine the merits of Valdés's
ineffective assistance claim under § 2255. That merits order would
be subject to appeal, as would be an order denying the motion to
amend.
So ordered.
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