                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0782n.06

                                            No. 07-4536
                                                                                           FILED
                                                                                       Dec 11, 2009
                                                                                 LEONARD GREEN, Clerk
                           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 SOUTHERN
                                                          )        DISTRICT OF OHIO
MIGED YISRAEL,                                            )
                                                          )
       Defendant-Appellant.                               )
                                                          )


BEFORE: MARTIN and ROGERS, Circuit Judges, and REEVES, District Judge.*

       ROGERS, Circuit Judge. In this direct appeal, defendant Miged Yisrael raises two claims

of ineffective assistance of counsel. Because these ineffective assistance claims are better left for

resolution on collateral review, affirmance is warranted without reaching these claims.

       In 2002, the Government filed civil forfeiture actions against money and personal property

seized in searches of real property associated with Yisrael. The Government alleged that these items

were subject to forfeiture because they were associated with Yisrael’s illegal drug distribution

activities. Yisrael’s wife, represented by attorney Daniel O’Brien, contested the Government’s

forfeiture efforts by claiming the seized items as her own. In 2004, while the forfeiture actions were

still ongoing, Yisrael was charged with drug distribution and illegal possession of firearms, and he

was appointed counsel. Yisrael’s representation by appointed counsel was terminated a few weeks

       *
       The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 07-4536
United States v. Yisrael


later after O’Brien noted his appearance in Yisrael’s criminal case. The forfeiture actions were

resolved by agreed order, and Yisrael pled guilty to two of the crimes alleged. Yisrael obtained new

counsel, Leo Mulligan, and moved to withdraw the guilty plea on the grounds that O’Brien did not

adequately explain to Yisrael the statutory mandatory sentences involved and that Yisrael had wished

to pursue a motion to suppress. The district court denied Yisrael’s motion. On appeal, Yisrael asks

this court to vacate his guilty plea and reverse his convictions on the ground that O’Brien rendered

ineffective assistance by engaging in multiple and successive representation of Yisrael in the

criminal action and Yisrael’s wife in the civil forfeiture action. Yisrael argues that O’Brien’s

opposition to the Government’s forfeiture efforts was attributed to Yisrael and resulted in less

favorable terms in his plea agreement. Yisrael also alleges that Mulligan rendered ineffective

assistance when he failed to move to withdraw Yisrael’s guilty plea based on O’Brien’s alleged

conflict.

        “The usual rule is that a defendant may not raise claims for ineffective assistance of counsel

on direct appeal. Rather, the . . . preferable route for raising an ineffective assistance of counsel

claim is in a post-conviction proceeding under 28 U.S.C. § 2255, whereby the parties can develop

an adequate record.” United States v. Sullivan, 431 F.3d 976, 986 (6th Cir. 2005) (internal citations

and quotations omitted). “When an ineffective-assistance claim is brought on direct appeal,

appellate counsel and the court must proceed on a trial record not developed precisely for the object

of litigating or preserving the claim and thus often incomplete or inadequate for this purpose.”

Massaro v. United States, 538 U.S. 500, 504-05 (2003). “The appellate court may have no way of


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No. 07-4536
United States v. Yisrael


knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive

or was taken because the counsel’s alternatives were even worse. . . . And evidence of alleged

conflicts of interest might be found only in attorney-client correspondence or other documents that,

in the typical criminal trial, are not introduced.” Id. at 505. “[A]n ineffective-assistance-of-counsel

claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could

have raised the claim on direct appeal.” Id. at 504. Because the present record is not adequate to

address Yisrael’s ineffective assistance claims, the court declines to rule on those claims at this time.

        This case does not present one of the rare instances in which a defendant can establish

ineffective assistance of counsel based on the record on direct appeal. Even assuming that O’Brien

actively represented conflicting interests such that Yisrael need not show “probable effect upon the

outcome,” see Mickens v. Taylor, 535 U.S. 162, 166 (2002), the current record is not sufficient for

Yisrael to establish an actual effect on the adequacy of the representation, the lesser prejudice

requirement for a conflict-based ineffective assistance claim, Cuyler v. Sullivan, 446 U.S. 335, 349-

50 (1980). Therefore, the current record is not sufficient for the court to determine whether O’Brien

rendered ineffective assistance in representing Yisrael.

        Because the current record is not sufficient for the court to determine whether O’Brien

rendered ineffective assistance due to an alleged conflict of interest, the current record likewise is

not sufficient for the court to determine whether Mulligan rendered ineffective assistance when he

did not raise O’Brien’s alleged conflict as a basis for withdrawing Yisrael’s guilty plea. Therefore,

we decline to rule on these claims and AFFIRM the district court’s judgment.


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