Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1843
UNITED STATES OF AMERICA,
Appellee,
v.
STEVE HUARD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Chief Judge,
Ebel * and Lipez, Circuit Judges.
David A. Vicinanzo, by appointment of the court, with
whom David W. Ruoff and Joshua H. Orr were on brief for
appellant.
Aixa Maldonado-Quinones, Assistant United States
Attorney, with whom Michael J. Gunnison, United States
Attorney, was on brief for appellee.
August 20, 2009
*
Of the Tenth Circuit, sitting by designation.
EBEL, Circuit Judge. In this direct criminal appeal,
Defendant-Appellant Steve Huard challenges his three
convictions stemming from a bank robbery. Huard asserts
only that his trial attorney provided constitutionally
ineffective representation. A criminal defendant, however,
generally cannot bring an ineffective-assistance claim on
direct appeal absent extraordinary circumstances. And Huard
has failed to establish such circumstances here. Therefore,
having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM
his convictions, leaving Huard the opportunity to pursue his
ineffective-assistance claims in a collateral proceeding
under 28 U.S.C. § 2255.
I. BACKGROUND
On October 19, 2005, two masked men robbed the
Bellwether Credit Union in Manchester, New Hampshire. The
men entered the credit union armed with guns, ordered the
tellers to give them cash, and then drove away in a stolen
Cadillac. The men got away with approximately $18,500.
Several months later, a grand jury indicted Huard on
three charges stemming from this robbery: 1) conspiracy to
commit bank robbery, in violation of 18 U.S.C. § 371;
2) bank robbery, in violation of 18 U.S.C. § 2113(a); and
3) using and brandishing a firearm in furtherance of a crime
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of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). 1
Following a three-day trial, a jury convicted Huard of all
three charges.
A week later, Huard, acting pro se, filed an “Emergency
1
18 U.S.C. § 2113(a) provides, in pertinent part:
“Whoever enters or attempts to enter any bank . . . with the
intent to commit in such bank . . . any felony affecting
such bank . . . and in violation of any statute of the
United States, or any larceny—Shall be fined under this
title or imprisoned not more than twenty years, or both.”
18 U.S.C. § 371, in relevant part, provides that,
[i]f two or more persons conspire either to commit
any offense against the United States, or to
defraud the United States, or any agency thereof in
any manner or for any purpose, and one or more of
such persons do any act to effect the object of the
conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both.
Regarding the weapons charge, 18 U.S.C. § 924(c)(1)(A)(ii)
states:
Except to the extent that a greater minimum
sentence is otherwise provided by this subsection
or by any other provision of law, any person who,
during and in relation to any crime of violence or
drug trafficking crime (including a crime of
violence or drug trafficking crime that provides
for an enhanced punishment if committed by the use
of a deadly or dangerous weapon or device) for
which the person may be prosecuted in a court of
the United States, uses or carries a firearm, or
who, in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment for
such crime of violence or drug trafficking crime —
. . . .
(ii) if the firearm is brandished, be
sentenced to a term of imprisonment of
not less than 7 years.
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Motion to Appoint New Counsel.” In support of that motion,
Huard asserted, among other things, that he had asked
defense counsel to investigate and file a motion to suppress
the gun that officers found when they arrested Huard, but
counsel failed to do so. Defense counsel, on the other
hand, denied that Huard had ever made such a request. The
district court granted Huard’s motion for a new attorney.
Six months later, newly appointed counsel filed a motion
for a new trial, see Fed. R. Crim. P. 33, arguing Huard’s
trial counsel was ineffective for failing to move to
suppress the gun. Huard also complained about trial
counsel’s failure to object to unduly prejudicial testimony
presented during trial. The district court denied Huard
relief without addressing the merits of these claims,
concluding instead that the court lacked jurisdiction to
consider the new trial motion because it was untimely. In
denying Huard relief, the district court noted that Huard’s
“remedy, if any, on his claims of ineffective
assistance . . . lies on direct review, or collateral review
pursuant to a motion for relief under 28 U.S.C. § 2255.”
(D. Ct. doc. 81 at 6 (footnote omitted).) The court further
noted, however, that “[i]t is almost a universal rule that
ineffective assistance of counsel claims cannot be raised
for the first time on direct review because, invariably, a
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factual record must be fully developed,” but that
“[e]xceptions are made on occasion, . . . if the court of
appeals concludes that the record on appeal is sufficiently
developed to warrant consideration of the issue.” (Id. at
6 n.1.)
The district court then sentenced Huard to 360 months
in prison. Huard filed a timely notice of appeal from “the
judgment of conviction and sentence.” (D. Ct. Doc. 99.)
See Fed. R. App. P. 4(b)(1)(A)(i).
II. DISCUSSION
On appeal, Huard argues only that his convictions are
the result of trial counsel’s constitutionally ineffective
representation. 2 Huard specifically complains that counsel
failed to move to suppress the gun, as well as evidence of
Huard’s other bad acts seized at the time of Huard’s arrest,
and failed to object to the introduction of unduly
prejudicial testimony.
A defendant can assert ineffective-assistance claims for
the first time in a collateral motion made under 28 U.S.C.
2
The motion for new trial was untimely and the district
court declined to consider it because it was untimely.
There is no error in that ruling. Nor does Huard on appeal
argue that his motion for new trial was timely. His appeal
is clearly directed at the merits of his conviction and
accordingly we treat the appeal as one challenging his
conviction and sentence, rather than as an appeal of the
district court’s denial of his untimely motion for new
trial.
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§ 2255 and, in fact, that is the preferred procedure. See
Massaro v. United States, 538 U.S. 500, 504-05, 509 (2003);
see also United States v. Wyatt, 561 F.3d 49, 52 (1st Cir.),
cert denied, 129 S. Ct. 2818 (2009). One reason for this is
to provide an opportunity for the parties to develop the
factual record necessary to resolve such claims. See United
States v. Rodriguez, 457 F.3d 109, 117 (1st Cir. 2006); see
also Massaro, 538 U.S. at 504-06. Another reason is to
permit the district court to address an
ineffective-assistance claim in the first instance, because
“an appellate court is ill-equipped to handle the
fact-specific inquiry that such claims often require” and
“the insights of the trier, who has seen and heard the
witnesses at first hand and watched the dynamics of the
trial unfold, are often of great assistance.” 3 United
States v. Ofray-Campos, 534 F.3d 1, 34 (1st Cir. 2008)
(quotation omitted), cert. denied, 129 S. Ct. 588, 999
(2009); see Massaro, 538 U.S. at 504-05.
Only in rare cases, where the trial record is already
sufficient to resolve an ineffective-assistance claim, will
we consider that claim on direct appeal. See Wyatt, 561
3
Huard points out that he did present most of these
ineffective-assistance claims to the district court in his
new trial motion. But, because that motion was untimely,
the district court did not address the merits of these
claims.
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F.3d at 52 (noting exception when “trial counsel’s
ineffectiveness is manifestly apparent from the record”);
Ofray-Campos, 534 F.3d at 34 (noting that, “[i]n the
exceptional case, . . . where the record is sufficiently
developed, and critical facts are not in dispute, such
claims may be reviewed” on direct appeal). Huard argues
that his is such a case. We disagree.
To prevail on a claim of ineffective representation,
Huard must show both that his trial attorney’s performance
was deficient and that the deficient performance prejudiced
Huard’s defense. See Strickland v. Washington, 466 U.S.
668, 887 (1984). Part of the deficient-performance prong of
that test requires consideration of whether counsel’s
challenged actions were part of a reasonable strategy. See
Massaro, 538 U.S. at 505; see also Yarborough v. Gentry, 540
U.S. 1, 8 (2003) (per curiam); Strickland, 466 U.S. at
690-91.
In support of his ineffective-assistance claims, Huard
submits the affidavit of his trial attorney, who attests
that he simply missed the grounds that would have supported
a suppression motion because he misread the police report.
But in that same affidavit, trial counsel also asserts that,
[t]o the extent I considered a Fourth Amendment
challenge at all, I believed that it was possible
that federal authorities in Boston could bring
felon-in-possession charges against Mr. Huard, in
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addition to the charges already pending against him
in New Hampshire. I felt that it would be better
to bring a motion to suppress in a Massachusetts
case, were one to be charged, because the chances
of prevailing on such a motion was [sic] greater in
Boston than in New Hampshire.
(D. Ct. doc. 67, attachment.) This suggests, in
contradiction of the first part of the affidavit, that trial
counsel may have had a strategic reason not to file a motion
to suppress in Huard’s New Hampshire case. At any rate, we
cannot say, based upon this affidavit alone, that it “is
manifestly apparent from the record” that defense counsel’s
performance was constitutionally deficient. Wyatt, 561 F.3d
at 52.
Although perhaps a more minor point, the parties also
dispute whether Huard ever asked his trial attorney to
investigate and file a motion to suppress the gun. Huard
says he did, but defense counsel denies it. This dispute
may not be dispositive because, depending upon the obvious
merit or lack of merit of the motion to suppress and
depending upon the strategies involved, counsel may (or may
not) have had an independent duty to file a motion to
suppress on behalf of his client.
Moreover, there is nothing in the current record to
suggest why trial counsel failed to object to the trial
testimony that Huard now alleges was unduly prejudicial.
These unresolved factual issues further counsel against
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considering Huard’s ineffective-assistance claims now, on
direct appeal. 4 See Wyatt, 561 F.3d at 52; United States v.
Sanchez-Badillo, 540 F.3d 24, 33 (1st Cir. 2008), cert.
denied, 129 S. Ct. 953 (2009).
Even if Huard were able to establish his attorney’s
deficient performance on the record as it now exists, we
would still conclude that it would be best for the district
court to consider, in the first instance, whether any of
trial counsel’s purported errors prejudiced Huard’s defense.
See Ofray-Campos, 534 F.3d at 34 (noting that “it is the
trial court, rather than the appellate court, that is in the
best position to assess whether” counsel’s performance, “if
it was in fact constitutionally deficient, resulted in
prejudice to [Huard’s] substantial rights, as required under
Strickland”); see also United States v. Leahy, 473 F.3d 401,
410 (1st Cir. 2007).
During oral argument and again in a later Fed. R. App.
P. 28(j) letter, Huard suggests that, in light of these
4
Huard argues that because the Government never
asserted, in defense of his new trial motion, that further
factual development was necessary, the Government has now
waived any such argument. It is true that, in defending
against Huard’s new trial motion, the Government focused
only on rebutting his Fourth Amendment arguments challenging
the legality of the discovery and seizure of the handgun.
But that does not change the fact that we do not have an
adequate record on which to consider the merits of Huard’s
ineffective-assistance claims.
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unresolved factual disputes, this court should remand this
case to the district court at this juncture. At one point
in its brief, the Government seems to agree. Although an
appellate court has authority to do so “in special
circumstances,” United States v. Vega Molina, 407 F.3d 511,
531 (1st Cir. 2005), we decline to exercise that authority
here.
III. CONCLUSION
For these reasons, then, we decline to address the
merits of Huard’s ineffective-assistance claims on direct
appeal and conclude, instead, that “if [Huard] wants to
raise these claims, he must do so on collateral review.”
United States v. Silva, 554 F.3d 13, 23 (1st Cir. 2009).
Therefore, we DISMISS Huard’s ineffective-assistance claims
without prejudice to his reasserting them in a collateral
proceeding under 28 U.S.C. § 2255, see Ofray-Campos, 534
F.3d at 34, and AFFIRM Huard’s convictions on direct review,
see United States v. Hicks, 531 F.3d 49, 56 (1st Cir.),
cert. denied, 129 S. Ct. 590 (2008).
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