          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                November 18, 2008
                               No. 08-50098
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RAUL PORTILLO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 7:05-CR-102-ALL


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Raul Portillo appeals his guilty plea conviction and life sentence for
possession of cocaine with intent to distribute, arguing that he received
ineffective assistance of counsel. Portillo pleaded guilty pursuant to a written
agreement that included a waiver of appeal provision. Portillo acknowledges his
appeal waiver but argues that the waiver excepted claims of ineffective
assistance of counsel. The Government argues that Portillo’s appeal waiver
precludes him from bringing the instant appeal.

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                   No. 08-50098

      Even if Portillo’s appeal waiver does not bar the instant appeal, the
“general rule in this circuit is that a claim of ineffective assistance of counsel
cannot be resolved on direct appeal when the claim has not been raised before
the district court since no opportunity existed to develop the record on the merits
of the allegations.” United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987)
(citations omitted). Only on those rare occasions where the record is sufficiently
developed will the court undertake to consider claims of inadequate
representation on direct appeal. Id. at 314 (citations omitted). If this court
cannot fairly evaluate the claim from the record, it must decline to consider the
issue without prejudice to a defendant’s right to raise it in a subsequent
proceeding. United States v. Gulley, 526 F.3d 809, 821 (5th Cir.), cert, denied,
___ S. Ct. ___, 2008 WL 2463795 (2008).
      Although the district court held an evidentiary hearing on Portillo’s
assertion that he received ineffective assistance of counsel, the district court
addressed only Portillo’s claim that trial counsel failed to file the notice of appeal
that Portillo requested. The district court explicitly stated that it did not
address the merits of Portillo’s other ineffective assistance claims. Thus, the
record does not provide sufficient detail about trial counsel’s conduct to make a
fair evaluation of the grounds of ineffective assistance that Portillo argues on
appeal. See Gulley, 526 F.3d at 821. Portillo is not precluded from raising the
merits of his ineffective assistance claims in a § 2255 motion filed not later than
one year from date that the district court’s January 24, 2008, judgment is final.
      Accordingly, Portillo’s conviction and sentence are AFFIRMED.




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