      United States Court of Appeals
               FOR THE DISTRICT OF COLUMBIA CIRCUIT




No. 02–3010                             September Term, 2002
                                                 01cr00159–01
                    Filed On: June 13, 2003


                  UNITED STATES OF AMERICA,
                          APPELLEE

                                v.

           RASHEED RASHAD, A/K/A MICHAEL THOMAS,
                        APPELLANT

                     –————
  BEFORE: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.

                         ORDER
  It is ORDERED, by the Court, that the opinion of June 10,
2003, be amended as follows:
  At page 2 of the slip opinion, delete ‘‘remanding’’ in line 10
of the first paragraph. Insert in lieu thereof ‘‘a remand in’’.
  At page 2 of the slip opinion, delete ‘‘send the case back’’ in
the last sentence of the first paragraph. Insert in lieu
thereof ‘‘remand the record’’.
   At page 5 of the slip opinion, insert ‘‘grant a’’ after ‘‘we
should not’’ and insert ‘‘in’’ after ‘‘remand’’ in line 5 of the
first full paragraph.
  At page 5 of the slip opinion, delete ‘‘a case’’ in line 2 of the
second full paragraph. Insert in lieu thereof ‘‘the record’’.
  At page 5 of the slip opinion, delete ‘‘six’’ in line 12 of the
second full paragraph. Insert in lieu thereof ‘‘a handful of’’.
                               2

   At page 6 of the slip opinion, insert ‘‘the record in’’ after
‘‘remand of’’ in line 19.
   At page 7 of the slip opinion, insert ‘‘the record in’’ after
‘‘remanding’’ in line 12 of the first full paragraph.

                         Per Curiam
                                         FOR THE COURT:
                                         Mark J. Langer, Clerk
                                   BY:
                                         Michael C. McGrail
                                         Deputy Clerk
  Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.




       United States Court of Appeals
                  FOR THE DISTRICT OF COLUMBIA CIRCUIT




Argued January 21, 2003                        Decided June 10, 2003

                               No. 02-3010

                     UNITED STATES OF AMERICA,
                             APPELLEE

                                     v.

                           RASHEED RASHAD,
                              APPELLANT



          Appeal from the United States District Court
                  for the District of Columbia
                       (No. 01cr00159–01)



  Michael S. Fried, appointed by the court, argued the cause
for appellant. With him on the briefs was Daniel H. Brom-
berg, appointed by the court.
  Thomas S. Rees, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Roscoe C. Howard,
Jr., U.S. Attorney, John R. Fisher and Thomas J. Tourish,
Jr., Assistant U.S. Attorneys.

 Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
                              2

  Before: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.
  Opinion for the court filed by Chief Judge GINSBURG.
   GINSBURG, Chief Judge: Rasheed Rashad appeals his con-
viction on the ground that his lawyer’s advice to reject a plea
offer constituted ineffective assistance of counsel. Invoking
this court’s procedure for cases in which the defendant raises
on appeal a colorable and previously unexplored claim of
ineffective assistance, Rashad with the aid of new counsel
seeks an evidentiary hearing in the district court. The
Government argues that the limitation upon successive peti-
tions for habeas corpus contained in the Anti–Terrorism and
Effective Death Penalty Act counsels against a remand in this
case, and that further factual development of Rashad’s claim
would be futile. We disagree and hence remand the record
to the district court for further proceedings.

                      I.   Background
  Rashad was the target of a sting operation involving ‘‘con-
trolled buys’’ by a government informant. On two occasions
in 2001 the informant arranged to purchase cocaine from
Rashad while under surveillance by the Bureau of Alcohol,
Tobacco, and Firearms. BATF agents recorded telephone
conversations in which Rashad set up the sales and they
equipped the informant with a hidden video camera and a
microphone to capture audio and video recordings of the
transactions. At the culmination of the second deal, agents
arrested Rashad and recovered the agreed-upon amount of
cocaine.
  The grand jury returned a 10–count indictment and the
parties entered into plea negotiations. The record is silent as
to the details of the talks. We know only, from the prosecu-
tor’s statement at sentencing, that ‘‘[t]he plea paperwork
[was] drawn up, and it appeared as though this case would be
resolved. [But] Mr. Rashad TTT had a change of heart.’’
  Rashad’s allegation of ineffective assistance emerges from
the shadows of the plea bargaining. He claims his trial
                               3

counsel assured him that the evidence against him could not
support a conviction and that he faced a maximum sentence of
10 to 15 years in prison. Rashad says he rejected the
Government’s plea offer based upon that advice.
   At trial the Government presented the testimony of the
informant and of several BATF agents, as well as the record-
ings of the transactions. The jury found Rashad guilty of two
counts of distributing more than 50 grams of cocaine, in
violation of 21 U.S.C. § 841, and of one count of distributing
cocaine base within 1,000 feet of a school, in violation of 21
U.S.C. § 860(a). The district court sentenced Rashad to 235
months in prison—almost 20 years—to be followed by 10
years of supervised release. With new counsel, Rashad ap-
peals, claiming he was denied the effective assistance of
counsel guaranteed under the Sixth Amendment to the Con-
stitution of the United States.

                        II.   Analysis
  In order to succeed on a claim of ineffective assistance of
counsel, a criminal defendant
    must show two things: that his lawyer made errors ‘‘so
    serious that counsel was not functioning as the ‘counsel’
    guaranteed the defendant by the Sixth Amendment,’’ and
    that counsel’s deficient performance was prejudicial, i.e.,
    that there is a ‘‘reasonable probability that, but for
    counsel’s unprofessional errors, the result of the proceed-
    ing would have been different.’’
United States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997)
(quoting Strickland v. Washington, 466 U.S. 668, 687, 694
(1984)). Due to the fact-intensive nature of the Strickland
inquiry and the likelihood, when a defendant asserts his sixth
amendment claim for the first time on direct appeal, that the
relevant facts will not be part of the trial record, see Massaro
v. United States, 123 S. Ct. 1690, 1694 (2003) (‘‘The evidence
introduced at trial TTT will be devoted to issues of guilt or
innocence, and the resulting record in many cases will not
disclose the facts necessary to decide either prong of the
Strickland analysis’’), this court’s ‘‘general practice is to
                               4

remand the claim for an evidentiary hearing’’ unless ‘‘the trial
record alone conclusively shows’’ that the defendant either is
or is not entitled to relief. United States v. Fennell, 53 F.3d
1296, 1303–04 (D.C. Cir. 1995); cf. Massaro, 123 S. Ct. at
1696 (noting circumstances in which further factual develop-
ment is unnecessary).
  Rashad does not argue that he is entitled to relief upon the
basis of the existing record; he wants an opportunity to put
on evidence about the circumstances surrounding his plea
negotiations. The Government responds, first, that Rashad
should be required to pursue his claim in a petition for a writ
of habeas corpus. Alternatively, the Government maintains
that the present record conclusively establishes that Rashad
was not prejudiced by the alleged errors of counsel.

                               A.
   The Anti–Terrorism and Effective Death Penalty Act of
1996 (AEDPA) limits a defendant’s ability to file successive
motions for habeas corpus relief as follows: ‘‘A second or
successive motion must be certified TTT by a panel of the
appropriate court of appeals to contain TTT newly discovered
evidence TTT or TTT a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court.’’ 28 U.S.C. § 2255. The Government suggests that a
claim of ineffective assistance of counsel requiring factual
development is no different from a collateral attack upon a
conviction, and that to allow a defendant to litigate that type
of claim on remand from the court of appeals, rather than
requiring him to raise it in a § 2255 motion, permits the
defendant to avoid the limitations of the AEDPA.
   Although we have not previously addressed this precise
argument, we have—in decisions post-dating the enactment of
the AEDPA—recognized that unlike some circuits we gener-
ally do not require a defendant to raise an ineffective assis-
tance claim collaterally. See United States v. Todd, 287 F.3d
1160, 1164 (2002); United States v. Weaver, 281 F.3d 228,
233–34 (2002); United States v. Geraldo, 271 F.3d 1112, 1115–
16 (2001); but cf. United States v. Richardson, 167 F.3d 621,
                                 5

626 (D.C. Cir. 1999) (directing defendant to pursue habeas
petition because court could not resolve ineffective assistance
claim on existing record; no indication that defendant sought
or court considered remand).
   The Government does not argue that we should abandon
our practice in deference to the AEDPA. Rather, the Gov-
ernment would have us limit the practice to cases in which
the ineffective assistance claim is not the sole issue on appeal;
that is, we should not grant a remand in a case in which the de-
fendant raised ‘‘no substantive issues about the conduct of the
trial," lest we give him the functional equivalent of a habeas peti-
tion that would not count as his first bite at the apple under
the AEDPA.
   We see no justification for thus treating single- and multi-
ple-issue appeals differently. If remanding the record to permit a
defendant to litigate an ineffective assistance claim in the
district court sidesteps the limitations of § 2255, then it does
so regardless whether that claim was joined with other issues
in the direct appeal. The most to be said for the Govern-
ment’s proposed approach is that it might reduce the opportu-
nities for such ‘‘circumvention,’’ but even that proposition is
dubious. It is rare that appellate counsel, with a client
determined to appeal, cannot find some purported error about
which to complain; that is no doubt why in the past five years
this court has received only a handful of motions pursuant to Anders
v. California, 386 U.S. 738, 744 (1967) (appointed counsel may
withdraw only upon determination that appeal would be
‘‘wholly frivolous’’). By the same token, we doubt that many
defendants would be unable to meet the Government’s multi-
ple-issue requirement.
   More fundamentally, we reject the Government’s premise
that our remand practice on direct appeal should be curtailed
in order to give effect to the statutory restriction upon a
defendant’s ability to launch a second collateral challenge to
his conviction. Our practice derives from the perceived un-
fairness of holding a defendant making a claim of ineffective
assistance—for which new counsel is obviously a necessity—
to the 7–day time limitation in Rule 33 of the Federal Rules
                                6

of Civil Procedure for filing a motion for a new trial. See
Weaver, 281 F.3d at 234 (‘‘[T]rial counsel cannot be expected
to argue his own ineffectiveness in a motion for a new
trialTTTT [O]ur practice of remanding to the district court for
an evidentiary hearing has the effect of greatly extending [the
Rule 33] time limit’’). It would be inconsistent with the
underlying purpose of our practice—eliminating a technical
barrier to an ineffective assistance claim—to limit it to ap-
peals raising multiple issues in order to shore up the proce-
dural hurdle in § 2255. Indeed, the Second Circuit has cited
the new restriction on successive habeas petitions in § 2255
as a reason for not requiring a defendant to bring an ineffec-
tive assistance claim under § 2255. See United States v.
Leone, 215 F.3d 253, 256–57 (2000) (‘‘given the simplicity of
[the] ineffective assistance claim, we choose to exercise our
discretion to remand to the district court for further fact-
finding rather than to dismiss the appeal and force the
appellant to use up his only habeas petition’’). We conclude
that remand of the record in a case raising ineffective assistance
as the sole issue is appropriate if the trial record does not con-
clusively show whether the defendant is entitled to relief.
   We would be remiss if we left this subject without mention-
ing the Supreme Court’s decision, handed down after oral
argument in this case, in Massaro, which raised the converse
of the issue in this case: Does the failure of new counsel to
raise the ineffective assistance claim on direct appeal bar the
defendant from asserting the claim collaterally? The Court
held that there is no bar, resting its decision in large measure
upon the same consideration that underlies our remand prac-
tice, namely, that the trial record can not normally be expect-
ed to contain the evidence necessary to resolve an ineffective
assistance claim upon direct appeal. Massaro, 123 S. Ct. at
1694. The Court had no occasion to address our practice of
remanding such a case, but our approach is entirely consis-
tent with its opinion.

                            B.
   The Government contends in the alternative that a remand
is unwarranted in this case because the record conclusively
                                7

establishes that Rashad is not entitled to relief. The Govern-
ment does not dispute that Rashad has alleged errors by trial
counsel—understating both the strength of the Government’s
case and of Rashad’s sentencing exposure—sufficiently seri-
ous to meet the first part of the Strickland test. Rather, the
Government argues that Rashad has not shown a ‘‘ ‘reason-
able probability’ that he would have entered a guilty plea had
his lawyer correctly advised him,’’ or that his plea would have
resulted in a more favorable sentence. Gaviria, 116 F.3d at
1512, 1513.
   In the latter regard, the Government argues not only that
Rashad has failed to proffer any evidence that his acceptance
of the Government’s plea offer would have resulted in a more
favorable disposition for him, but also that as ‘‘the central
actor in a lengthy plea negotation,’’ he should be required to
produce such evidence. At this stage, however, Rashad need
not prove harm; the question is whether the record conclu-
sively establishes that he could not do so if given the chance.
Nothing in the record allows us to conclude that Rashad’s
sentence would have been the same or longer if he had
accepted the Government’s plea offer. The purpose of re-
manding the record in this case is to develop the record on pre-
cisely that point; at this juncture, Rashad’s allegation that, but
for his counsel’s defective advice, he would have accepted and
been better off with the plea offer, is sufficient.
   Somewhat more compelling is the Government’s contention
that Rashad could not reasonably have relied upon the alleg-
edly erroneous advice he claims to have received from trial
counsel. In response to Rashad’s complaints that his counsel
mischaracterized the strength of the Government’s evidence
and understated the severity of the sentence that Rashad
would face upon conviction, the Government cites transcripts
of pretrial hearings indicating that Rashad knew (1) the
Government had videotape evidence of him in flagrante delic-
to and (2) he faced a possible life sentence upon conviction.
In light of this information, and Rashad’s extensive experi-
ence as a criminal defendant—he had pleaded guilty to seven
felonies in other cases—the Government argues that Rashad
‘‘cannot colorably contend that whatever counsel did or did
                               8

not say TTT had any bearing on his knowing and voluntary
decision that he now regrets.’’
   Rashad’s knowledge of the videotape would seem to make
it difficult indeed for him to show that he was misled by
counsel into believing the Government’s evidence against him
was weak. That Rashad understood his sentencing exposure,
however, is far from clear. The Government cites a state-
ment made by the district court at a status conference during
a colloquy with the prosecutor about the need for a supersed-
ing indictment: ‘‘you certainly have plenty of transactions to
justify sending this guy away for life.’’ Assuming Rashad
was even aware of the statement, which was not addressed to
him, Rashad points out that the status conference occurred
well after he had rejected the plea offer and just days before
the trial. Therefore, we cannot say with the requisite cer-
tainty, based upon the record now before us, that Rashad was
aware of his sentencing exposure when he decided to go to
trial.

                      III.   Conclusion
  We hold that Rashad’s request for an evidentiary hearing
regarding his claim of ineffective assistance of counsel is
procedurally proper, and that the Government has not ad-
duced record evidence conclusively demonstrating that Rash-
ad will not be able to support his claim of prejudice. We
therefore remand the record to the district court for further
proceedings consistent with this opinion.
                                                  So ordered.
