                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           June 20, 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 04-2206
                                                    (D.C. No. CR-99-777)
 JUAN MANUEL CARBAJAL-                                    (D. N.M.)
 MORENO,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before EBEL, BALDOCK, and LUCERO, Circuit Judges.


      Juan Manuel Carbajal-Moreno appeals the district court’s denial of his

motion for a new trial. Seeking a new trial on the basis of “newly discovered

evidence,” Carbajal-Moreno argues that sometime after his convictions were

entered he discovered that his trial attorney surrendered his Bar license prior to

trial. The district court construed Carbajal-Moreno’s motion as asserting

ineffective assistance of counsel and denied the motion, concluding that


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
ineffective assistance of counsel claims should be brought in collateral

proceedings. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

                                         I

      John Hedderman filed a “Resignation with Charges Pending” with the

California State Bar, which the Supreme Court of California accepted on January

4, 2001. On January 23rd, Hedderman entered his appearance as counsel for

Carbajal-Moreno and on February 1st, he filed an application to appear pro hac

vice in the court below. In this application, Hedderman stated that he was

admitted to practice law before the Supreme Court of California, that he was in

good standing with the court, and that he was not currently suspended or

disbarred. On February 3rd the California State Bar listed Hedderman as

“resigned” and on February 5th the court below granted Hedderman’s application

to appear pro hac vice. Hedderman represented Carbajal-Moreno at trial, at which

the defendant was convicted of eight counts relating to a conspiracy to sell

marijuana.

      Thirty-five months after the jury verdict, Carbajal-Moreno filed a motion

for a new trial, arguing that his discovery that Hedderman had resigned his Bar

license constituted new evidence. In substance, Carbajal-Moreno argued that

Hedderman’s lack of Bar membership constituted ineffective assistance of

counsel. After receiving a response, a reply, and a supplemental response, the


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district court denied the motion without a hearing. The court based its denial on

longstanding precedent holding that ineffective assistance claims should be

brought in collateral proceedings and not on direct review. In so doing, the court

expressed “no opinion on the merits or timeliness of the Defendant’s claim, as it

is not properly before the Court at this stage in the proceedings.”

                                          II

      We review the denial of a motion for a new trial for an abuse of discretion.

United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997). 1 We have held


      1
        Carbajal-Moreno argues that the appropriate standard of review is de novo
because, he argues, the district court based its decision on a question of law. See
United States v. Austin, 231 F.3d 1278, 1281 (10th Cir. 2000) (“When the
determination of a new trial turns on an issue of law, however, the determination
is reviewed de novo.”). The relevant question of law, according to the defendant,
is “whether the participation by a disbarred attorney or an attorney who
voluntarily relinquished his privilege to be a licensed attorney in good standing
with any recognized lawyer’s bar placed ‘the underlying fairness of the entire trial
in doubt.’” Appellant’s Reply Br. at 1-2 (quoting United States v. Soussi, 316
F.3d 1095, 1109 (10th Cir. 2002)). That is not, however, the question that we
review in this case. The district court based its denial on its conclusion that
“Defendant’s claim should be brought in a collateral proceeding pursuant to 28
U.S.C. § 2255,” and denied an evidentiary hearing. The court specified that it
was not reaching the merits of Carbajal-Moreno’s claim. We have applied the
abuse of discretion standard where the district court denied an evidentiary hearing
and a motion for a new trial based on ineffective assistance, and do so now.
United States v. Sands, 968 F.2d 1058, 1066 (10th Cir. 1992). We apply a de
novo standard not when a district court decides, within its discretion, that a
motion for a new trial is an inappropriate vehicle for bringing a certain claim, but
rather when deciding the merits of the new trial motion involves reaching a
question of law. See, e.g., Morgan v. City of Albuquerque, 25 F.3d 918, 919
(10th Cir. 1994) (“the issue in this case turns on the district court’s determination
of a question of law, namely the applicability of the rules on peremptory jury

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repeatedly that “[i]neffective assistance of counsel claims should be brought in

collateral proceedings, not on direct appeal. Such claims brought on direct appeal

are presumptively dismissible, and virtually all will be dismissed.” United States

v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc); see also United

States v. Boigegrain, 155 F.3d 1181, 1186 (10th Cir. 1998) (“Normally, we

require criminal defendants alleging ineffective assistance of counsel to obtain a

ruling by a district court on their argument by way of a motion pursuant to 28

U.S.C. § 2255.”); United States v. Yates, 22 F.3d 981, 986 (10th Cir. 1994) (“a

claim of ineffective assistance of counsel which requires the development of a

record, will not be heard on direct appeal, but must be brought in a collateral

proceeding.”).

      Our insistence that, except in extraordinary circumstances, defendants must

bring ineffective assistance of counsel claims in collateral proceedings extends to

motions for a new trial. In United States v. Avelar, 80 F.3d 430 (10th Cir. 1996),

a defendant attempted to raise ineffective assistance of counsel as grounds for a

new trial. The relevant fact in Avelar was that defense counsel failed to



strikes to physical disability. We therefore review the district court’s
determination of that question de novo.”); Austin, 231 F.3d at 1281 (“Whether the
Sixth Amendment prohibits a judge from responding to a jury question by
directing it to make its verdict and any appended comments consistent is a
question of law that this court reviews de novo.”).



                                         -4-
accompany his client to a post-indictment meeting with law enforcement where

the defendant confessed to the crime. On appeal of the district court’s denial of

the motion for a new trial, we relied on Galloway to “hold that Avelar’s

ineffective assistance of counsel claim should be brought on collateral review.”

Id. at 431. Proceedings adjudicating claims raised in § 2255 motions provide the

best avenue for deciding assertions of ineffective assistance of counsel.

      Our decision in United States v. Stevens, 978 F.2d 565 (10th Cir. 1992),

provides one example of why motions for new trials on the basis of newly

discovered evidence serve as particularly inappropriate vehicles for raising

ineffective assistance of counsel claims. In Stevens, a defense attorney was

disbarred seven days before a criminal trial. Both the defendant and counsel were

unaware of the disbarment until after the jury convicted Stevens. The trial court

denied Stevens’ motion for a new trial based on this “newly discovered evidence”

and, on appeal, we applied the traditional test for adjudicating motions for new

trials based on newly discovered evidence and affirmed. This test requires a

defendant to prove, inter alia, that the new evidence “is material to the principal

issue involved.” See id. at 570. We clarified that the “principal issue involved”

in the trial is “not the competence of [defendant’s] lawyer” but rather the

underlying crime. Id. We specifically held that because the principal issue

involved was the defendant’s involvement in the crime, his attorney’s “bar status


                                         -5-
is not material to the principal issue.” Id. It is difficult to imagine a situation

where an attorney’s bar status would be material to the principal issue involved in

a criminal trial. Moreover, having already concluded that defense counsel’s

disbarment did not amount to a Sixth Amendment violation, we concluded that “it

cannot possibly meet the higher new trial standard under Rule 33.” Id. Thus, a

claim that an attorney’s bar status constitutes newly discovered evidence

ordinarily will not survive the test for deciding a motion for a new trial.

      Carbajal-Moreno argues that the district court abused its discretion by

denying his motion for a new trial and cancelling a scheduled evidentiary hearing

because this court has, in the past, considered claims of ineffective assistance of

counsel on direct review. In fact, we have held that “in rare circumstances where

the record before us allows for a fair evaluation of the merits of the claim . . . [a

defendant may] seek a new trial as part of the original criminal proceedings

(rather than by way of collateral attack) on the grounds of ineffective assistance

of counsel.” Sands, 968 F.2d at 1066 (emphasis added). However, simply

because we have “considered ineffective assistance of counsel claims on direct

appeal where such claims were adequately developed by the district court prior to

appeal,” United States v. Gallegos, 108 F.3d 1272, 1280 (10th Cir. 1997), does

not mean that a district court abuses its discretion when it declines to develop the

record. Adopting Carbajal-Moreno’s argument would require district courts to


                                           -6-
hold evidentiary hearings whenever they are presented with motions for new trials

based on ineffective assistance. This we decline to do.

      Additionally, even in the “rare circumstances” where the record allows

appellate review of a new trial claim based on ineffective assistance, “a defendant

must identify specific facts and circumstances outside the record which, if proven,

would entitle him to a new trial.” Sands, 968 F.2d at 1066. Importantly, the

defendant in Sands did not move for a new trial claiming newly discovered

evidence. As Stevens illustrates, the extra record facts identified by Carbajal-

Moreno – those concerning Hedderman’s Bar status – do not pertain to the

principal issue involved in the underlying trial, and therefore would not entitle

Carbajal-Moreno to a new trial on the basis of newly discovered evidence.

      The district court’s decision to deny the motion for a new trial and cancel

the scheduled evidentiary hearing was not “arbitrary, capricious, whimsical, or

manifestly unreasonable.” Austin, 231 F.3d at 1281. Deciding that ineffective

assistance of counsel claims should ordinarily be raised on collateral attack rather

than in a motion for a new trial does not amount to an error of law. Rather, such

a decision stems directly from our precedent. See Soussi, 316 F.3d at 1108 (“A

district court abuses its discretion if it makes an error of law.”). We therefore

conclude that the district court did not abuse its discretion.




                                          -7-
      In reaching this conclusion, we do not express any opinion as to the

underlying merits of Carbajal-Moreno’s Sixth Amendment claim. We hold only

that Carbajal-Moreno must bring his claim in a collateral proceeding.

                                        III

      We AFFIRM the district court’s order denying Carbajal-Moreno’s motion

for a new trial.

                                      ENTERED FOR THE COURT


                                      Carlos F. Lucero
                                      Circuit Judge




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