              Not for Publication in West’s Federal Reporter

         United States Court of Appeals
                     For the First Circuit

No. 08-1843

                   UNITED STATES OF AMERICA,

                              Appellee,

                                   v.

                            STEVE HUARD,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE
        [Hon. Steven J. McAuliffe, U.S. District Judge]


                                Before

                       Lynch, Chief Judge,
               Ebel * and Lipez, Circuit Judges.


     David A. Vicinanzo, by appointment of the court, with
whom David W. Ruoff and Joshua H. Orr were on brief for
appellant.
     Aixa  Maldonado-Quinones,  Assistant   United  States
Attorney, with whom Michael J. Gunnison, United States
Attorney, was on brief for appellee.


                          August 20, 2009




    *
        Of the Tenth Circuit, sitting by designation.
       EBEL, Circuit Judge. In this direct criminal appeal,

Defendant-Appellant             Steve     Huard       challenges      his       three

convictions stemming from a bank robbery.                          Huard asserts

only    that       his   trial   attorney        provided        constitutionally

ineffective representation.               A criminal defendant, however,

generally cannot bring an ineffective-assistance claim on

direct appeal absent extraordinary circumstances.                       And Huard

has failed to establish such circumstances here.                       Therefore,

having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM

his convictions, leaving Huard the opportunity to pursue his

ineffective-assistance            claims    in    a    collateral      proceeding

under 28 U.S.C. § 2255.

                                 I.     BACKGROUND

       On   October       19,    2005,     two    masked     men     robbed       the

Bellwether Credit Union in Manchester, New Hampshire.                             The

men entered the credit union armed with guns, ordered the

tellers to give them cash, and then drove away in a stolen

Cadillac.      The men got away with approximately $18,500.

       Several months later, a grand jury indicted Huard on

three charges stemming from this robbery: 1) conspiracy to

commit      bank    robbery,     in     violation      of   18    U.S.C.    §    371;

2) bank robbery, in violation of 18 U.S.C. § 2113(a); and

3) using and brandishing a firearm in furtherance of a crime




                                        - 2 -
of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). 1

Following a three-day trial, a jury convicted Huard of all

three charges.

    A week later, Huard, acting pro se, filed an “Emergency


    1
     18 U.S.C. § 2113(a) provides, in pertinent part:
“Whoever enters or attempts to enter any bank . . . with the
intent to commit in such bank . . . any felony affecting
such bank . . . and in violation of any statute of the
United States, or any larceny—Shall be fined under this
title or imprisoned not more than twenty years, or both.”

    18 U.S.C. § 371, in relevant part, provides that,

    [i]f two or more persons conspire either to commit
    any offense against the United States, or to
    defraud the United States, or any agency thereof in
    any manner or for any purpose, and one or more of
    such persons do any act to effect the object of the
    conspiracy, each shall be fined under this title or
    imprisoned not more than five years, or both.

Regarding the weapons charge, 18 U.S.C. § 924(c)(1)(A)(ii)
states:

    Except to the extent that a greater minimum
    sentence is otherwise provided by this subsection
    or by any other provision of law, any person who,
    during and in relation to any crime of violence or
    drug trafficking crime (including a crime of
    violence or drug trafficking crime that provides
    for an enhanced punishment if committed by the use
    of a deadly or dangerous weapon or device) for
    which the person may be prosecuted in a court of
    the United States, uses or carries a firearm, or
    who, in furtherance of any such crime, possesses a
    firearm, shall, in addition to the punishment for
    such crime of violence or drug trafficking crime —

             . . . .

         (ii) if the firearm is brandished,     be
         sentenced to a term of imprisonment    of
         not less than 7 years.

                           - 3 -
Motion to Appoint New Counsel.”                In support of that motion,

Huard    asserted,    among       other     things,       that    he     had   asked

defense counsel to investigate and file a motion to suppress

the gun that officers found when they arrested Huard, but

counsel failed to do so.                 Defense counsel, on the other

hand, denied that Huard had ever made such a request.                            The

district court granted Huard’s motion for a new attorney.

    Six months later, newly appointed counsel filed a motion

for a new trial, see Fed. R. Crim. P. 33, arguing Huard’s

trial    counsel     was    ineffective          for   failing      to    move    to

suppress    the    gun.       Huard       also    complained       about       trial

counsel’s failure to object to unduly prejudicial testimony

presented during trial.             The district court denied Huard

relief    without    addressing          the     merits    of     these    claims,

concluding   instead       that    the    court    lacked       jurisdiction      to

consider the new trial motion because it was untimely.                            In

denying Huard relief, the district court noted that Huard’s

“remedy,     if      any,     on      his        claims      of        ineffective

assistance . . . lies on direct review, or collateral review

pursuant to a motion for relief under 28 U.S.C. § 2255.”

(D. Ct. doc. 81 at 6 (footnote omitted).)                   The court further

noted, however, that “[i]t is almost a universal rule that

ineffective assistance of counsel claims cannot be raised

for the first time on direct review because, invariably, a


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factual       record     must     be       fully    developed,”   but     that

“[e]xceptions are made on occasion, . . . if the court of

appeals concludes that the record on appeal is sufficiently

developed to warrant consideration of the issue.”                      (Id. at

6 n.1.)

      The district court then sentenced Huard to 360 months

in prison.         Huard filed a timely notice of appeal from “the

judgment of conviction and sentence.”                    (D. Ct. Doc. 99.)

See Fed. R. App. P. 4(b)(1)(A)(i).

                                II.    DISCUSSION

      On appeal, Huard argues only that his convictions are

the result of trial counsel’s constitutionally ineffective

representation. 2        Huard specifically complains that counsel

failed to move to suppress the gun, as well as evidence of

Huard’s other bad acts seized at the time of Huard’s arrest,

and       failed    to   object       to   the     introduction   of    unduly

prejudicial testimony.

      A defendant can assert ineffective-assistance claims for

the first time in a collateral motion made under 28 U.S.C.


      2
     The motion for new trial was untimely and the district
court declined to consider it because it was untimely.
There is no error in that ruling. Nor does Huard on appeal
argue that his motion for new trial was timely. His appeal
is clearly directed at the merits of his conviction and
accordingly we treat the appeal as one challenging his
conviction and sentence, rather than as an appeal of the
district court’s denial of his untimely motion for new
trial.

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§ 2255 and, in fact, that is the preferred procedure.                                        See

Massaro v. United States, 538 U.S. 500, 504-05, 509 (2003);

see also United States v. Wyatt, 561 F.3d 49, 52 (1st Cir.),

cert denied, 129 S. Ct. 2818 (2009).                        One reason for this is

to provide an opportunity for the parties to develop the

factual record necessary to resolve such claims.                                  See United

States v. Rodriguez, 457 F.3d 109, 117 (1st Cir. 2006); see

also Massaro, 538 U.S. at 504-06.                               Another reason is to

permit            the         district            court          to         address          an

ineffective-assistance claim in the first instance, because

“an        appellate       court       is        ill-equipped          to     handle         the

fact-specific inquiry that such claims often require” and

“the       insights      of    the   trier,       who    has     seen      and    heard      the

witnesses         at    first   hand    and       watched       the    dynamics         of   the

trial       unfold,      are    often       of    great     assistance.” 3              United

States       v.   Ofray-Campos,         534       F.3d     1,    34   (1st       Cir.    2008)

(quotation         omitted),         cert.       denied,    129       S.    Ct.    588,      999

(2009); see Massaro, 538 U.S. at 504-05.

       Only in rare cases, where the trial record is already

sufficient to resolve an ineffective-assistance claim, will

we consider that claim on direct appeal.                                   See Wyatt, 561


       3
     Huard points out that he did present most of these
ineffective-assistance claims to the district court in his
new trial motion.   But, because that motion was untimely,
the district court did not address the merits of these
claims.

                                             - 6 -
F.3d    at       52     (noting      exception     when     “trial      counsel’s

ineffectiveness is manifestly apparent from the record”);

Ofray-Campos,           534   F.3d    at   34    (noting     that,    “[i]n     the

exceptional case, . . . where the record is sufficiently

developed,        and    critical     facts     are   not   in   dispute,     such

claims may be reviewed” on direct appeal).                        Huard argues

that his is such a case.              We disagree.

       To prevail on a claim of ineffective representation,

Huard must show both that his trial attorney’s performance

was deficient and that the deficient performance prejudiced

Huard’s defense.              See Strickland v. Washington, 466 U.S.

668, 887 (1984).          Part of the deficient-performance prong of

that    test      requires        consideration       of    whether     counsel’s

challenged actions were part of a reasonable strategy.                          See

Massaro, 538 U.S. at 505; see also Yarborough v. Gentry, 540

U.S.    1,   8    (2003)      (per   curiam);     Strickland,     466    U.S.    at

690-91.

       In support of his ineffective-assistance claims, Huard

submits the affidavit of his trial attorney, who attests

that he simply missed the grounds that would have supported

a suppression motion because he misread the police report.

But in that same affidavit, trial counsel also asserts that,

       [t]o the extent I considered a Fourth Amendment
       challenge at all, I believed that it was possible
       that federal authorities in Boston could bring
       felon-in-possession charges against Mr. Huard, in

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       addition to the charges already pending against him
       in New Hampshire. I felt that it would be better
       to bring a motion to suppress in a Massachusetts
       case, were one to be charged, because the chances
       of prevailing on such a motion was [sic] greater in
       Boston than in New Hampshire.

(D.     Ct.     doc.     67,     attachment.)                  This         suggests,      in

contradiction of the first part of the affidavit, that trial

counsel may have had a strategic reason not to file a motion

to suppress in Huard’s New Hampshire case.                             At any rate, we

cannot say, based upon this affidavit alone, that it “is

manifestly apparent from the record” that defense counsel’s

performance was constitutionally deficient.                            Wyatt, 561 F.3d

at 52.

       Although perhaps a more minor point, the parties also

dispute       whether    Huard       ever    asked       his        trial    attorney      to

investigate and file a motion to suppress the gun.                                     Huard

says he did, but defense counsel denies it.                                  This dispute

may not be dispositive because, depending upon the obvious

merit    or     lack    of     merit    of    the    motion           to    suppress      and

depending upon the strategies involved, counsel may (or may

not)    have    had     an    independent        duty         to    file     a   motion    to

suppress on behalf of his client.

       Moreover,       there    is     nothing      in    the       current      record    to

suggest       why   trial     counsel       failed       to    object       to   the   trial

testimony       that    Huard    now    alleges          was       unduly    prejudicial.

These    unresolved          factual     issues      further          counsel      against

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considering Huard’s ineffective-assistance claims now, on

direct appeal. 4          See Wyatt, 561 F.3d at 52; United States v.

Sanchez-Badillo,           540   F.3d   24,     33    (1st   Cir.   2008),     cert.

denied, 129 S. Ct. 953 (2009).

      Even    if    Huard    were   able      to     establish    his   attorney’s

deficient performance on the record as it now exists, we

would still conclude that it would be best for the district

court to consider, in the first instance, whether any of

trial counsel’s purported errors prejudiced Huard’s defense.

See Ofray-Campos, 534 F.3d at 34 (noting that “it is the

trial court, rather than the appellate court, that is in the

best position to assess whether” counsel’s performance, “if

it   was     in    fact    constitutionally           deficient,     resulted     in

prejudice to [Huard’s] substantial rights, as required under

Strickland”); see also United States v. Leahy, 473 F.3d 401,

410 (1st Cir. 2007).

      During oral argument and again in a later Fed. R. App.

P.   28(j)    letter,       Huard   suggests         that,   in   light   of   these



      4
     Huard   argues  that   because  the   Government  never
asserted, in defense of his new trial motion, that further
factual development was necessary, the Government has now
waived any such argument.    It is true that, in defending
against Huard’s new trial motion, the Government focused
only on rebutting his Fourth Amendment arguments challenging
the legality of the discovery and seizure of the handgun.
But that does not change the fact that we do not have an
adequate record on which to consider the merits of Huard’s
ineffective-assistance claims.

                                        - 9 -
unresolved factual disputes, this court should remand this

case to the district court at this juncture.                    At one point

in its brief, the Government seems to agree.                     Although an

appellate       court   has    authority       to    do   so    “in    special

circumstances,” United States v. Vega Molina, 407 F.3d 511,

531 (1st Cir. 2005), we decline to exercise that authority

here.

                              III.   CONCLUSION

    For     these   reasons,     then,    we   decline     to   address       the

merits of Huard’s ineffective-assistance claims on direct

appeal    and   conclude,     instead,    that      “if   [Huard]     wants    to

raise these claims, he must do so on collateral review.”

United States v. Silva, 554 F.3d 13, 23 (1st Cir. 2009).

Therefore, we DISMISS Huard’s ineffective-assistance claims

without prejudice to his reasserting them in a collateral

proceeding under 28 U.S.C. § 2255, see Ofray-Campos, 534

F.3d at 34, and AFFIRM Huard’s convictions on direct review,

see United States v. Hicks, 531 F.3d 49, 56 (1st Cir.),

cert. denied, 129 S. Ct. 590 (2008).




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