United States v. Thaddeus Adonis Long, United States of America v. Edward Larry Jackson

BOWMAN, Circuit Judge,

concurring.

I agree that the convictions of Long and Jackson should be affirmed, and I therefore concur in the Court’s decision. I believe the Court errs, however, by going into the merits of Jackson’s claim that his trial counsel was ineffective. That claim was not raised in the district court; Jackson has raised it for the first time in this appeal.

In this circuit, there is a well-established practice of refraining from addressing on direct appeal claims that the defendant’s *448trial counsel was ineffective. We refrain from examining such claims because “(1) it would be inappropriate for us to examine the merits of the claim if the trial court has not done so and (2) our failure to address the incompetency of counsel issue will not prejudice the appellant.” United States v. Holy Bear, 624 F.2d 853, 856 (8th Cir.1980). Accord United States v. Dubray, 727, F.2d 771, 772 (8th Cir.1984) (per curiam) (“this court should not address appellant’s claims of ineffective assistance of counsel on direct appeal because appellant did not present the claims to the district court and the record is undeveloped”); United States v. Briscoe, 574 F.2d 406, 409 n. 2 (8th Cir.) (per curiam), cert. denied, 439 U.S. 858, 99 S.Ct. 173, 58 L.Ed.2d 165 (1978) (claim of ineffective assistance of trial counsel raised initially on appeal “is not properly before us”); United States v. Hancock, 558 F.2d 1300, 1303 (8th Cir.) (per curiam), cert. denied, 434 U.S. 872, 98 S.Ct. 219, 54 L.Ed.2d 152 (1977) (court “decline[s] to review” the issue of ineffective assistance not raised at trial).

The same rule obtains in other circuits, for the same reasons. See, e.g., United States v. Reveron Martinez, 836 F.2d 684, 688 (1st Cir.1988); United States v. Edmondson, 818 F.2d 768, 769 (11th Cir.1987) (per curiam); United States v. Debango, 780 F.2d 81, 86 n. 5 (D.C.Cir.1986); United States v. Colon-Padilla, 770 F.2d 1328, 1334 n. 6 (5th Cir.1985); United States v. Jarrett, 705 F.2d 198, 209 (7th Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984); United States v. Boffa, 688 F.2d 919, 938 (3d Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983); United States v. Johnson, 434 F.2d 827, 830-31 (9th Cir.1970). See also 3 C. Wright, Federal Practice & Procedure: Criminal 2d § 601, at 514 (1982) (“Issues not raised in the trial court cannot be considered on appeal.”)

We should adhere in this case to the settled practice that the foregoing cases exemplify. It is both inappropriate and unwise for an appellate court to consider on appeal issues that the trial court has not had an opportunity to consider and with respect to which a record has not been developed. For that reason, I would simply have noted that Jackson’s ineffective assistance of counsel claim is not properly before us, pointed out that he may raise this claim in the District Court by means of proceedings under 28 U.S.C. § 2255, and said no more.