       [NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]


          United States Court of Appeals
                         For the First Circuit

                         ____________________

No. 01-1938

                           UNITED STATES,
                              Appellee,


                                  v.

                   RIGOBERTO VALDÉS, A/K/A "RIGO,"
                        Defendant, Appellant.
                         ____________________


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]

                         ____________________

                                Before

              Torruella, Lynch and Lipez, Circuit Judges.

                         ____________________


     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.

                         ____________________
                             June 19, 2002
                         ____________________
            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.


                                       -2-
            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,


                                        -3-
*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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