                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0791n.06
                           Filed: November 13, 2007

                                            No. 06-2166

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE EASTERN
                                       )                  DISTRICT OF MICHIGAN
DAVID MORRIS ALLEN,                    )
                                       )                          OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: BATCHELDER, MOORE, and COLE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. This case involves Defendant-Appellant

David Morris Allen’s direct appeal of his conviction in the U.S. District Court for the Eastern

District of Michigan, for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

For the reasons explained below, we AFFIRM the judgment of the district court. We decline to

reach Allen’s claim of ineffective assistance of counsel, without prejudice to Allen’s right to raise

the claim in a proceeding pursuant to 28 U.S.C. § 2255.

                                       I. BACKGROUND

       At approximately five a.m. on the morning of September 25, 2004, the Detroit Police

Department executed a raid at Club Fabulous, an after-hours night club. Officer Nevin Hughes saw

the defendant standing outside the club holding a gun and then saw him throw the gun onto the

ground near a fire hydrant. Apart from Allen, Hughes saw no other people on the sidewalk directly
outside the club. Hughes arrested Allen and retrieved the gun. Allen had a felony conviction dating

prior to this arrest.

        On May 17, 2005, Allen was charged in a one-count indictment with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Following a three-day trial and

several hours of deliberation, a jury convicted Allen. Prior to sentencing, Allen fired his trial

attorney and retained Attorney David S. Steingold as new defense counsel. On January 24, 2006,

the district judge granted Allen’s motion to extend the time for filing his motion for a new trial

pursuant to FED . R. CRIM . P. 33. On April 14, 2006, Allen filed a motion for a new trial, arguing that

his previous defense attorney provided ineffective assistance of counsel at trial. His motion included

a request for an evidentiary hearing. The district court denied the motion because it concluded that

the trial counsel’s alleged acts and omissions, whether taken separately or as a whole, did not meet

the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668

(1984). Allen filed a motion for reconsideration that included another request for an evidentiary

hearing, which Allen believed would bolster his claims of ineffective assistance of counsel. The

district court denied the motion for reconsideration on the grounds that Allen had failed to show that

the order denying the new trial contained a palpable error and that correcting the error would result

in a different disposition of the case, as required by Eastern District of Michigan Local Rule

7.1(g)(3).

        On August 29, 2006, the district court sentenced Allen to fifty-one months’ incarceration

followed by two years’ supervised release. Allen filed a timely notice of appeal to this court.




                                                   2
                                           II. ANALYSIS

A. Standard of Review

       Allen contests on appeal the district court’s denial of his motion for a new trial, without first

granting him an evidentiary hearing. We will affirm a district court’s denial of a criminal

defendant’s motion for a new trial “unless there has been error as a matter of law or a clear and

manifest abuse of judicial discretion.” 3 CHARLES ALAN WRIGHT , NANCY J. KING , & SUSAN R.

KLEIN , FEDERAL PRACTICE AND PROCEDURE § 559 (3d ed. 1999); see also United States v. Pierce,

62 F.3d 818, 823 (6th Cir. 1995) (citing United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991)),

cert. denied, 516 U.S. 1136 (1996). The defendant has the burden of proving that the district court

should grant a new trial. Id. (citing United States v. Davis, 15 F.3d 526, 531 (6th Cir. 1994)).

Similarly, we review for abuse of discretion a district court’s decision not to grant an evidentiary

hearing before ruling on a motion for a new trial. United States v. Bass, 460 F.3d 830, 838 (6th Cir.

2006), cert. denied, --- U.S. ---, 127 S. Ct. 2959 (2007); United States v. O’Dell, 805 F.2d 637, 643

(6th Cir. 1986), cert. denied, 484 U.S. 859 (1987).

       To determine whether the district court abused its discretion, we must assess whether the

district judge “relie[d] on clearly erroneous findings of fact, or . . . improperly applie[d] the law or

use[d] an erroneous legal standard.” Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995)

(citing Southward v. S. Cent. Ready Mix Supply Corp., 7 F.3d 487, 492 (6th Cir. 1993)). “In

examining findings of fact, this court may reverse only if after a review of all the evidence, we are

‘left with the definite and firm conviction that a mistake has been committed.’” Harrison v. Metro.

Gov’t of Nashville & Davidson County, 80 F.3d 1107, 1112-13 (6th Cir.) (quoting Anderson v. City

of Bessemer City, 470 U.S. 564, 573 (1985)), cert. denied, 519 U.S. 863 (1996).


                                                   3
          We review de novo a criminal defendant’s ineffective-assistance-of-counsel claim, which is

a mixed question of law and fact. Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 2003) (citing

Strickland v. Washington, 466 U.S. 668, 698 (1984)), cert. denied, 540 U.S. 1133 (2004). We

decline to address ineffective-assistance-of-counsel claims on direct appeal, however, unless the “the

existing record is adequate to assess properly the merits of the claim.” United States v. Hynes, 467

F.3d 951, 969 (6th Cir. 2006) (quoting United States v. Franklin, 415 F.3d 537, 555-56 (6th Cir.

2005)).

B. The District Court’s Denial of an Evidentiary Hearing before Ruling on Allen’s Motion

          Allen argues that “[a]t a minimum, the trial court should have granted [his] request for an

evidentiary hearing raised in both his original Rule 33 motion, and renewed in his motion for

reconsideration.” Defendant-Appellant Br. at 15. A trial court, however, has the discretion to deny

an evidentiary hearing before ruling on a motion for a new trial. O’Dell, 805 F.2d at 643. We

require a defendant to produce at least a modicum of evidence in support of a request for an

evidentiary hearing on a motion for a new trial based on ineffective assistance of counsel. Bass, 460

F.3d at 838 (holding that “[t]he district court did not abuse its discretion by declining to grant [the

defendant] an evidentiary hearing . . . because [the defendant] failed to proffer any evidence that his

trial counsel rendered ineffective assistance”). When filing his Rule 33 motion, Allen did not offer

any evidence in support of his allegations regarding ineffective assistance of counsel.1 Accordingly,




          1
         In support of his motion for reconsideration, Allen provided the affidavit of one witness.
The district court, however, correctly determined that the affidavit should have been submitted as
part of the original Rule 33 motion. Moreover, the affiant provided no information concerning
Allen.

                                                   4
the district court acted within its discretion in denying both Allen’s original Rule 33 motion and his

motion for reconsideration.

C. The District Court’s Rejection of Allen’s Ineffective-Assistance-of-Counsel Claim

       We reach ineffective-assistance-of-counsel claims on direct appeal only if the record is

sufficiently developed to permit us to review the claims. United States v. Jones, 489 F.3d 243, 255

(6th Cir. 2007). The presumption against resolving an ineffective-assistance claim on direct appeal

“stems from the fact that a finding of prejudice is a prerequisite to a claim for ineffective assistance

of counsel, and appellate courts are not equipped to resolve factual issues.” United States v. Brown,

332 F.3d 363, 368-69 (6th Cir. 2003). “[I]n most cases a motion brought under § 2255 is preferable

to direct appeal for deciding claims of ineffective assistance.” Massaro v. United States, 538 U.S.

500, 504 (2003).

       Allen argues that his trial counsel provided ineffective assistance of counsel for four reasons,

of which the most significant is Allen’s allegation that his counsel did not investigate witnesses to

the Club Fabulous raid. To evaluate Allen’s ineffective-assistance claim, we would need evidence

such as an affidavit from Allen’s defense attorney stating why he chose not to interview these

witnesses, or further affidavits from the persons who would have potentially served as witnesses

indicating the probative value of their testimony. Because insufficient evidence exists for us to

determine whether the failure on the part of Allen’s trial attorney to investigate witnesses to the Club

Fabulous raid constituted ineffective assistance of counsel, we decline to reach this claim.

D. Allen’s Equal-Protection Claim

       Allen argues that Project Safe Neighborhoods, as applied in locations within the Eastern

District of Michigan, violates his right to equal protection under the Fourteenth Amendment.


                                                   5
Because Allen’s trial attorney did not raise this issue through a pre-trial motion in the district court,

and in the absence of plain error affecting Allen’s “substantial rights,” we conclude that Allen has

forfeited this argument. United States v. Olano, 507 U.S. 725, 732-35 (1993).

                                        III. CONCLUSION

        The district court did not abuse its discretion in ruling on Allen’s motion for a new trial based

on a claim of ineffective assistance of counsel, without granting an evidentiary hearing. The record

is insufficiently developed, however, to determine whether there is merit to Allen’s claim that his

trial attorney’s failure to investigate potential witnesses amounted to constitutionally deficient

assistance. We therefore AFFIRM the judgment of the district court denying Allen’s motion for a

new trial, without prejudice to Allen’s right to bring an ineffective-assistance-of-counsel claim in

a proceeding pursuant to 28 U.S.C. § 2255.




                                                   6
