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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12422
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-00068-JES-DNF-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NADIA C. RODRIGUEZ,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Middle District of Florida
____________________________
(April 1, 2013)
Before MARCUS, JORDAN, and KRAVITCH, Circuit Judges.
PER CURIAM:
Nadia Rodriguez appeals following her convictions for conspiracy to possess
with the intent to distribute oxycodone, in violation of 21 U.S.C. § 846, and
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possession with the intent to distribute oxycodone, in violation of 21 U.S.C. §
841(a)(1). Ms. Rodriguez’s sole contention in this appeal is that she received
ineffective assistance of counsel during plea negotiations, which caused her to
plead guilty pursuant to a written agreement that contained an appeal waiver when
she otherwise may not have. As the basis for her ineffective assistance claim, Ms.
Rodriguez contends her trial counsel gave her incorrect information that “induced”
her to sign the plea agreement. Specifically, she argues that counsel told her she
was subject to a statutory minimum sentence when she was not.
While some evidence exists that could support Ms. Rodriguez’s claim, we
decline to address it. The claim is better suited for resolution on a 28 U.S.C. § 2255
motion because the record, which contains no details about what trial counsel
actually communicated to Ms. Rodriguez, is not developed enough at this stage for
us to assess his effectiveness. See, e.g., Massaro v. United States, 538 U.S. 500,
504, 123 S. Ct. 1690, 1694 (2003) (“[I]n most cases a motion brought under § 2255
is preferable to direct appeal for deciding claims of ineffective assistance.”);
United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (“We will not
generally consider claims of ineffective assistance of counsel raised on direct
appeal where the district court did not entertain the claim nor develop a factual
record.”).
We note also that Ms. Rodriguez advances only an ineffective assistance of
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counsel claim in this appeal, and does not challenge her convictions or her
sentence directly. We therefore affirm her convictions and sentence, but we do so
without prejudice to Ms. Rodriguez filing a motion to vacate under § 2255. We
express no view on what effect, if any, the plea agreement’s collateral attack
waiver will have in a future § 2255 proceeding. See, e.g., Williams v. United States,
396 F.3d 1340, 1342 n.2 (11th Cir. 2005) (declining to address whether collateral
attack waiver would extend to a claim of ineffective assistance of counsel “in
entering or negotiating” a plea); Patel v. United States, 252 F. App’x 970, 975
(11th Cir. 2007) (concluding, in an unpublished opinion, that collateral attack
waiver did not bar § 2255 challenge to “validity of . . . guilty plea”). 1
AFFIRMED.
1
We also express no view on whether Ms. Rodriguez—who conceded in her briefs that even
with “proper counsel” she “would have pled guilty,” just “without a plea agreement”—will be
able, in a future § 2255 proceeding, to show the prejudice required under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See, e.g., Hill v. Lockhart, 474 U.S. 52, 59,
106 S. Ct. 366, 370 (1985) (“[T]o satisfy the ‘prejudice’ requirement, the defendant must show
that there is a reasonable probability that, but for counsel’s errors, [s]he would not have pleaded
guilty and would have insisted on going to trial.”). Cf. United States v. Brown, 586 F.3d 1342,
1345 (11th Cir. 2009).
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