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

                                                                            NOV 28 2003
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                       PATRICK FISHER
                                                                                Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 02-2299
                                                         (New Mexico)
 TAMMY FRANKLIN,                                  (D. Ct. No. CR-01-1382 JC)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before MURPHY, BALDOCK, and O’BRIEN, Circuit Judges.



      Tammy Franklin appeals her conviction for trafficking crack cocaine.

Franklin claims (1) she was denied due process because her attorney failed to call

a material witness, and (2) the district court abused its discretion by failing to

grant a continuance so she could obtain new counsel. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

                                     I. Background

      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The 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.
      Jennifer Wiskowski, an undercover officer with the Lea County Drug Task

Force in Hobbs, New Mexico, was introduced to Franklin by Teresa Goree in

December 2000. Wiskowski purchased crack cocaine from Franklin on five

separate occasions between December 20, 2000, and January 17, 2001. Each sale

took place in Franklin’s home and was recorded by a transmitter worn by

Wiskowski. 1

      On October 24, 2001, Franklin was charged with four counts of

Distribution of Less Than Five Grams of a Mixture or Substance Containing

Cocaine Base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). On October 26,

2001, the district court appointed counsel (trial counsel) to represent her.

Franklin pled not guilty to all counts.

      After one continuance, granted at Franklin’s request, 2 jury selection began

on January 8, 2002. The trial resumed on January 15, 2002, but before witnesses

were called and out of the presence of the jury, Franklin informed the court that

she was dissatisfied with trial counsel’s representation. 3 She said she had

attempted to retain an attorney, Max Proctor, but trial counsel had refused to send



      1
       In total, Wiskowski purchased thirty-one rocks of crack cocaine from
Franklin.
      2
          The trial was originally set for December 4, 2001.
      3
       The Honorable John E. Conway conducted voir dire. The Honorable
Bruce D. Black (trial judge) presided over the trial.

                                          -2-
him discovery materials. She also stated she had not reviewed the material

produced by the government or listened to any of the tapes derived from

Wiskowski’s transmitter. She further alleged Goree was available to testify on

her behalf but trial counsel had told Goree not to appear at trial.

      In response to Franklin’s allegations trial counsel informed the court: 1) he

heard from Proctor shortly after he received the government’s discovery response;

2) after obtaining Franklin’s consent, he discussed the case with Proctor for 20-30

minutes and upon Proctor’s request he faxed the discovery materials to Proctor

several times but never heard back; 3) he discussed the discovery materials with

Franklin during her numerous visits to his office; 4) Franklin had not listened to

the tapes, but he had described their content to her and she never requested to

listen; and 5) he talked with Goree on two occasions and “[t]here [was no] doubt

in [his] mind as an attorney that her testimony would not be favorable to the

defense, and [that he did] not intend to call her as a witness.” Finally, he stated

he was fully prepared for trial and ready to proceed.

       The trial judge ruled it was “too late” to switch lawyers, noting Franklin

could have hired Proctor and she failed to raise her dissatisfaction with trial

counsel to Judge Conway, who had presided over jury selection a week earlier.

The judge further informed Franklin she could listen to the tapes and see the other

discovery materials during the lunch recess. Additionally, he stated: “You


                                         -3-
understand that your attorney is trying to do what he thinks in his professional

judgment is best for you. That may not be consistent with what you think your

friends will say. But if, after he’s investigated, he’s determined it would be bad

for your case, then he has a professional responsibility not to call them to the

stand.” The judge then proceeded with the trial.

      Franklin testified. She admitted acquiring crack cocaine for Wiskowski but

attempted to excuse her behavior because Goree had told her Wiskowski’s brother

had been killed and, further, if Wiskowski was unable to acquire cocaine for her

husband, he would beat her. She felt sorry for Wiskowski. In rebuttal,

Wiskowski denied having induced or coerced Franklin in any way.

      After a one-day trial, the jury found Franklin guilty of all four counts. On

October 15, 2002, she was sentenced to seventy-eight months imprisonment on

each count, all to run concurrently. This appeal followed.

                                   II. Discussion

      (A) Attorney’s Failure to Call Witness

      Franklin claims Goree’s testimony was critical to her entrapment defense

and she was denied due process of law because her attorney failed to call Goree

as a witness. This is an ineffective assistance of counsel claim.

      “Ineffective assistance of counsel claims should be brought in collateral

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


                                          -4-
presumptively dismissible, and virtually all will be dismissed.” United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (citations omitted)

(recognizing that this rule enables the record to be developed and allows the

district court to render an opinion first, which is a “valuable aid to appellate

review”). Only in rare instances, where the record is sufficiently developed for

effective review, will an appellate court resolve an ineffective assistance of

counsel claim not raised in the trial court. United States v. Wynne, 993 F.2d 760,

765-66 (10th Cir. 1993) (citation omitted). Even where the record is sufficiently

developed, there is no requirement that an ineffective assistance of counsel claim

be brought on direct appeal. Galloway, 56 F.3d at 1241. A failure to do so will

not procedurally bar the claim in collateral proceedings. Massaro v. United

States, _____ U.S. _____, 123 S. Ct. 1690, 1696, (2003); Galloway, 56 F.3d at

1241.

        Franklin did not raise her ineffective assistance of counsel claim in the

district court and the present record is inadequate for effective review. She can

more appropriately raise this claim in a 28 U.S.C. § 2255 action, where the record

can be sufficiently developed. Accordingly, we decline to address the ineffective

assistance of counsel claim on direct appeal.




                                           -5-
      (B) District Court’s Failure to Grant Continuance

      Franklin contends the district court erred in failing to grant a continuance

to allow her an opportunity to obtain new counsel, but she never specifically

requested a continuance. If we assume a request was made, we review for an

abuse of discretion. Otherwise, we review under the more demanding plain error

test. 4 Under either standard, there was no error.

      “[A] motion for continuance is addressed to the sound discretion of the trial

court and, on appeal, a denial of such request is not grounds for reversal unless

there is a clear abuse of discretion which results in manifest injustice.” United

States v. McManaman, 653 F.2d 458, 460 (10th Cir. 1981) (citations omitted);

see also Wynne, 993 F.2d at 767 (holding that an appellate court will find error in

the denial of a motion to continue “only if the denial was arbitrary or

unreasonable and materially prejudiced the defendant”) (citations and internal

quotations omitted).

      Whether a denial of a motion for a continuance is arbitrary or
      unreasonable depends upon an examination of a number of factors,
      including: 1) the diligence of the party requesting the continuance; 2)
      the likelihood that the continuance, if granted, would accomplish the


      4
         “Under this standard, reversal is warranted only when there is: (1) an
error; (2) that is plain or obvious; (3) that affects substantial rights; and (4) that
seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001)
(citation omitted), cert. denied sub nom. Davis v. United States, 534 U.S. 1106
(2002).

                                           -6-
      purpose underlying the party’s express need for the continuance; 3)
      the inconvenience to the opposing party, its witnesses, and the court
      resulting from the continuance; [and] 4) the need asserted for the
      continuance and the harm that appellant might suffer as a result of
      the district court’s denial of the continuance.

United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (quoting United

States v. West, 828 F.2d 1468, 1470 (10th Cir. 1987)).

      Assuming (quite charitably) that Franklin made a proper request for a

continuance, the district court did not abuse its discretion in denying it. Trial

counsel was prepared for trial, the judge was assured by his statements that

Goree’s testimony would not be helpful to the defense and Franklin was offered

an opportunity to review the discovery materials. The case had been continued

once at Franklin's request and the timing of her second request, after the jury had

been selected, militated against it. The district court’s decision to proceed to trial

despite Franklin’s late blooming statement of dissatisfaction with appointed

counsel was not error. Moreover, the evidence against Franklin, inter alia, her

own admissions, suggests new counsel would not have changed the outcome.

                                   III. Conclusion

      We decline to review Franklin’s ineffective assistance of counsel claim on

direct appeal and conclude the district court did not err in denying a second




                                          -7-
continuance of trial. The Judgment and Sentence are AFFIRMED.


                                   Entered by the Court:


                                   TERRENCE L. O’BRIEN
                                   United States Circuit Judge




                                    -8-
