                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                         AUGUST 6, 2010
                                    No. 08-14856
                                                                           JOHN LEY
                              ________________________                      CLERK

                         D. C. Docket No. 07-00232-CR-WS-M

UNITED STATES OF AMERICA,


                                                                          Plaintiff-Appellee,

                                            versus

JOHNNIE DUANE JOHNS,

                                                                      Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                            _________________________

                                      (August 6, 2010)

Before TJOFLAT, CARNES and REAVLEY,* Circuit Judges.

PER CURIAM:

       *
         Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit, sitting
by designation.
      Johnnie Duane Johns pleaded guilty to one count of possessing

pseudoephedrine with intent to manufacture methamphetamine (“meth”), in

violation of 21 U.S.C. § 841(c)(1). He contends that: (1) the district court clearly

erred by finding that he was competent to proceed to sentencing instead of holding

a formal competency hearing; and (2) he received ineffective assistance of counsel

during the plea and sentencing hearings. We affirm as to the competency ruling

and dismiss the ineffective-assistance claim because it is not yet ripe for appellate

review.

                                          I.

      In July 2007, a federal grand jury indicted Johns on four counts of drug-

related offenses. Johns and three other individuals were charged with conspiracy

to possess with intent to distribute in excess of 50 grams of meth, in violation of

21 U.S.C. § 846 (Count 1). Johns was also charged with two counts of possession

of pseudoephedrine with intent to manufacture meth, in violation of 21 U.S.C. §

841(c)(1) (Counts 2 and 3), as well as one substantive count of possession with

intent to distribute (Count 4).

      Pursuant to a written agreement, Johns pleaded guilty to Count 2 in

exchange for the government’s agreement to drop the other charges, which it did.

Johns stipulated that a factual resume attached to the plea agreement was accurate

                                          2
and that the government could prove those facts at trial beyond a reasonable

doubt. Under the terms of the plea agreement, Johns waived his right to challenge

his sentence in any appeal or collateral attack, with the following exceptions: (1) a

sentence in excess of the statutory maximum; (2) an upward departure from the

guideline range; and (3) a claim of ineffective assistance of counsel.

      In the plea agreement, which was signed on September 12, 2007, Johns

stated that he was “not under the influence of alcohol, drugs, or narcotics,” and

that he was “in full possession of [his] senses and mentally competent to

understand this Plea Agreement and the guilty plea hearing which will follow.”

Johns said he was “completely satisfied” with his legal counsel, who had

discussed with him the facts of the case, the legal elements of the charges, the

government’s likely evidence, and possible defenses. Johns also stated that he

understood and voluntarily agreed to the plea agreement, and his counsel attested

that Johns had made an informed and voluntary decision to plead guilty.

      During the plea colloquy on September 14, 2007, defense counsel informed

the court that Johns was “fully competent to enter a valid plea.” Johns confirmed

that he had never been treated for mental illness or drug addiction and that he was

not under the influence of drugs or alcohol at the time of the plea hearing. In

response to a number of questions by the district court, Johns acknowledged that

                                          3
he and his attorney had “fully discussed” all of the facts surrounding the charges

against him and that they had reviewed the indictment and the terms and

conditions of the plea agreement. Johns also acknowledged that he understood:

the nature and elements of the charges, the terms and conditions of the plea

agreement, the potential penalties he was facing (including the fact that the

sentence imposed might differ from any estimate his attorney had given him), the

rights he would lose if convicted, and the rights that his guilty plea was waiving.

Johns admitted that he had committed the offense conduct outlined in the factual

resume of his plea agreement. He then pleaded guilty to Count 2 of the

indictment, and his attorney confirmed that he knew of no reason the court should

not accept Johns’s guilty plea.

      Based on the plea colloquy, the district court found that Johns was “fully

competent and capable of entering an informed plea, that [he was] aware of the

nature of the charge and the consequences of [his] plea, and that [his] plea of

guilty [was] a knowing and voluntary plea supported by an independent basis in

fact.” The court accepted Johns’s guilty plea and adjudicated him guilty.

      The Presentence Report assigned Johns a base offense level of 34 because

of the drug quantity and added a 2-level enhancement, pursuant to U.S.S.G. §

2D1.1(b)(1), because “a dangerous weapon was possessed.” With a total offense

                                          4
level of 36 and a criminal history category of I, Johns received an advisory

guidelines range of 188 to 235 months imprisonment. The PSR also reported that

Johns, while being interviewed by a probation officer, said that he had “never been

evaluated or treated for any mental or emotional problems.” The probation officer

noted that Johns “communicated without difficulty and appeared to understand the

seriousness of the charges.” During the interview, Johns also said: “I am sorry I

did it. I hated it while I was doing it. I wanted to quit, but I needed to supplement

my income. It makes me sick to my stomach to know I am responsible for what it

was doing to people’s lives.”

      At the first sentencing hearing, on April 11, 2008, defense counsel moved

for a continuance because he wanted time to investigate “whether this stuff he’s

been using for four-and-a-half years, mostly crystal meth, has damaged his brain.”

He argued that Johns’s diminished capacity had interfered with their

attorney-client relationship and that Johns was “not in touch with reality” and had

“all the symptoms of a damaged brain.” The government opposed the motion,

arguing that Johns’s ability to run a meth-cooking operation and broker pills

demonstrated that he had the mental acumen necessary to stand trial. The court

noted that “everybody who uses meth is in similar circumstances,” but granted the




                                          5
continuance and invited defense counsel to file a written motion for a competency

hearing pursuant to 18 U.S.C. § 4241.

      On April 21, 2008, defense counsel filed a motion to transport Johns for

psychological testing in order to determine his mental competency, and the court

granted the motion. Dr. Daniel Koch, a clinical psychologist, conducted an eight-

hour evaluation and concluded, among other things, that Johns had Attention

Deficit Disorder, suffered from bipolar disorder, and was mildly impaired. The

report, however, did not make an express determination of Johns’s competency to

stand trial. As Dr. Koch would later explain, he conducted a mental health

evaluation but not “a formal competency to stand trial assessment.” Based on Dr.

Koch’s report, defense counsel drafted a motion to determine Johns’s competency.

That motion, which was filed the day before the sentencing hearing, asserted that

Dr. Koch found that Johns had “a severe mental disease or defect,” had an

“organic brain impairment,” and was “clearly impaired.”

      During the sentencing hearing on June 17, 2008, the court heard argument

on the motion to determine Johns’s competency. Defense counsel took the

position that Johns “suffer[ed] from a severe mental disease or defect primarily as

a result of his addiction to crystal meth and methamphetamine in any form.”

Johns’s condition had worsened “since he entered his [guilty] plea,” his counsel

                                         6
asserted, because Johns “became addicted again” while he was released on bond.

Johns was back in custody since his bond was revoked, but the jail allegedly was

not medicating him. Counsel summarized Dr. Koch’s report, noting that “some

parts” of it indicate that Johns is “severely impaired and severely diseased as a

result of this drug use.” Counsel admitted, however, that the report “does not

answer the question that we are dealing with right now.” As defense counsel

explained, it “doesn’t say that he is mentally incompetent and doesn’t say that he

isn’t.”

          Johns’s father testified that his son (who was 35 at the time) did not have

any mental problems in his teens and early 20s. Johns was a “fine young lad” who

became an Eagle Scout. When he was in his mid- to late 20s, Johns finished

second in his class at a technical college and had a steady job. In the four or five

years before his arrest, however, Johns had become addicted to meth. Johns was

“not like he used to be.” He was “fidgety and won’t pay attention to you.” In

order to carry on a conversation, “you have to go about it in pieces and ways,

because he’ll get off on some other things.” Although Johns was “not well” and

needed rehabilitation, he had not received any treatment since his arrest.

According to his father, Johns had a brain impairment, could not take an active

part in the proceedings, and did not “realize how much trouble he is in.” Johns’s

                                             7
father testified that imprisonment had worsened his son’s condition and that Johns

was not “competent and able to understand what’s going on here and defend

himself as best he can.”

        On cross-examination, Johns’s father admitted that he was not a medical

expert and therefore could not dispute Dr. Koch’s finding that Johns’s degree of

impairment was mild. Johns’s father was aware that Johns had apologized to his

probation officer for his actions, but was unaware that his son also had a

conversation with case agents in which he acknowledged the amount of time he

was facing and asked how he could cut that time.1 John’s father insisted that his

son did not understand the consequences of the charges. He also said that he

wanted Johns to pay for his crimes but not to serve a lengthy jail sentence.

        Defense counsel requested a continuance so that Dr. Koch could testify.

(Earlier in the hearing, defense counsel said that had he “appropriately prepared”

he would have asked Dr. Koch to be present for the hearing.) The government

objected, arguing that further delay was unnecessary and that the defense had

failed to show “reasonable cause” to believe that Johns was mentally incompetent.




        1
            Defense counsel noted in an objection that this conversation took place prior to Johns’s
plea.

                                                   8
See 18 U.S.C. § 4241(a). The district court granted the continuance without

making any explicit factfindings at that time.

      Dr. Koch testified at the continued sentencing hearing, which was held on

June 25, 2008. Although he had not done a formal competency assessment of

Johns, Dr. Koch had performed an eight-hour psychological evaluation of him.

Based on that evaluation, Dr. Koch believed that he had a “thorough

understanding” of Johns and that he “fully understood his condition.” Dr. Koch

testified that Johns had ADD since birth and that the condition often leads to

bipolar disorder if left untreated. Meth has a calming effect on individuals with

those disorders, but the resulting brain deterioration interferes with the substance

abuser’s judgment and his ability to relate to others. Dr. Koch said that pattern

“indisputably” described Johns, who was “compromised in his ability to conform

his conduct.” In Dr. Koch’s opinion, John’s case of ADD was in fact a “severe

mental disease or defect.” Dr. Koch was specifically asked whether Johns was

competent to be sentenced. He gave this response:

      I believe he’s compromised. I believe he has a difficulty conforming
      his conduct, but I did not do a competency to stand trial evaluation. I
      ask different things at that point, and I inquire about his decisions
      during the duration of the criminal activity. I doubt that he was, but I
      have not inquired in detail into that, and I don’t, I don’t think I can
      say more than that given those limits.



                                       9
      On cross-examination, Dr. Koch reiterated that he had “not assessed [the

competency] issue sufficiently to give an opinion on that.” He also testified that a

person who had brain damage was not necessarily suffering from a mental disease

or defect that rendered him mentally incompetent. He acknowledged that the

degree of Johns’s impairment was mild, and that Johns could be stabilized with

treatment. Johns’s statement that it makes him “sick to [his] stomach” to know

about the impact of his actions on people’s lives, Dr. Koch admitted, “would

certainly reflect at the time that he made that statement that at least in retrospect he

had some insight.” Dr. Koch testified that Johns was compromised but also that

he could not state that Johns was mentally incompetent because he did not perform

a formal competency assessment.

      The court examined Dr. Koch, noting that it had “to find that there is

reasonable cause to believe that [Johns] is incompetent before I can order that he

be transferred to a facility for further evaluation. That’s the standard that I’m

dealing with here.” Dr. Koch responded that: “the degree of his problem is such

that there’s certainly a good probability that he lacks competency to cooperate

with his attorney in an effective way. That’s about as much as I [can] offer.” Dr.

Koch informed the court that the results of a battery of brain integrity tests

indicated that Johns’s level of impairment was “in the mildest of categories,” but

                                           10
he noted that brain integrity is not necessarily a measure of mental competence.

Dr. Koch reported that Johns’s IQ is at the 14th percentile and his working

memory is at the 7th percentile. According to Dr. Koch, “he’s less capable than he

appears, and he doesn’t appear very capable.” The court asked Dr. Koch whether

Johns was cogent during his clinical interview, and Dr. Koch replied that he did

not “experience any real difficulty” in communicating with Johns.

      The district court noted that the issue of Johns’s competence was “a serious

matter.” The court then found that defense counsel had not shown “that there is

reasonable cause to believe that Mr. Johns is presently suffering from a mental

disease or defect rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the proceedings against him

and to assist properly in his defense.” Although Johns had failed to cooperate

with his attorney or the government, the court did not “see[ ] anything to take Mr.

Johns’ case out of that usual kind of case” in which a defendant is uncooperative

or returns to using illegal drugs. Because Johns had failed to satisfy his burden of

proof under 18 U.S.C. § 4241, the court found him competent to be sentenced.

      Without objection, the court then adopted the findings of the PSR and also

gave Johns a three-level reduction for acceptance of responsibility. Johns’s

adjusted advisory guidelines range was 135 to 168 months. Johns addressed the

                                         11
court, stating: “I am sorry for the actions that I did do in the past, and I just wish,

you know, that you’ll have leniency on me and let me get home, back home with

my children as soon as possible.” The district court then imposed a 135-month

term of imprisonment, to be followed by 3 years of supervised release. Johns did

not object to the sentence imposed.

       Defense counsel initially filed a notice of appeal limited to one issue: “The

defendant appeals the decision of the court denying that the defendant is

incompetent.” Counsel then attempted to file two “motions to dismiss” the appeal

that did not comply with appellate procedure under Anders v. California, 386 U.S.

738, 87 S.Ct. 1396 (1967). After this Court rejected those motions, counsel filed

an Anders brief and a motion to withdraw asserting that there was no arguably

meritorious issue for appeal. We disagreed with counsel’s conclusion, removed

him from the case, and appointed new counsel to represent Johns on appeal. We

directed new counsel to file a merits brief addressing, at a minimum, whether

Johns’s appeal waiver bars appellate review of his claim that he was mentally

incompetent to be sentenced, and, if not, whether the district court erred in finding

that he was competent to be sentenced.2

       2
         The government concedes that Johns’s sentence appeal waiver cannot serve to bar his
claim that he was incompetent to plead guilty and be sentenced. As the government correctly
explains, Johns’s appeal waiver itself would be invalid if Johns lacked the mental competence to
understand and appreciate the nature and consequences of the plea agreement. See, e.g., LoConte

                                              12
                                                 II.

       The Due Process Clause of the Fifth Amendment prohibits the government

from convicting or sentencing a defendant who is incompetent at the time of those

proceedings. See U.S. Const. amend. V; Pate v. Robinson, 383 U.S. 375, 378, 86

S.Ct. 836, 838 (1966); United States v. Rahim, 431 F.3d 753, 759 (11th Cir. 2005)

(“Whether the defendant is competent is an ongoing inquiry; the defendant must

be competent at all stages of trial.”). “The legal test for competency is whether the

defendant had ‘sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding’ and whether he had ‘a rational as

well as factual understanding of the proceedings against him.’” United States v.

Cruz, 805 F.2d 1464, 1479 (11th Cir. 1986) (quoting Dusky v. United States, 362

U.S. 402, 402, 80 S.Ct. 788, 789 (1960)).

       “Due process requires that an adequate hearing be held on competency

when the evidence raises a ‘bona fide doubt’ as to defendant’s competency to

stand trial” or be sentenced. Fallada v. Dugger, 819 F.2d 1564, 1568 (11th Cir.

1987); see also Drope v. Missouri, 420 U.S. 162, 172–73, 95 S.Ct. 896, 904–05

(1975); Pate, 383 U.S. at 385, 86 S.Ct. at 842. “Relevant information may include

evidence of a defendant’s irrational behavior, demeanor at trial, or prior medical


v. Dugger, 847 F.2d 745, 751 (11th Cir. 1988).

                                                 13
opinion, but ‘there are, of course, no fixed or immutable signs which invariably

indicate the need for further inquiry to determine fitness to proceed.’” Watts v.

Singletary, 87 F.3d 1282, 1287 (11th Cir. 1996) (brackets omitted) (quoting

Drope, 420 U.S. at 180, 95 S.Ct. at 908). Although those are constitutional

requirements, Congress has decided to express them in a statute as well. See 18

U.S.C. § 4241; see also United States v. Cornejo-Sandoval, 564 F.3d 1225, 1233

(10th Cir. 2009) (“There is good reason to believe that Congress envisioned §

4241 as embodying at least as much procedural protection as the standard

described in Pate.”); United States v. Swanson, 572 F.2d 523, 526 (5th Cir. 1978)

(explaining that § 4241’s precursor “enforces the due process requirement”

identified in Pate).3

       At any time between the commencement of prosecution and the sentencing

of the defendant, the defendant or the government may move for a competency

hearing. 18 U.S.C. § 4241(a). From that point forward, § 4241 lays out a three-

stage process for the district court to follow. First, the district court “shall grant

the motion, or shall order such a hearing on its own motion, if there is reasonable

cause to believe that the defendant may presently be suffering from a mental


       3
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

                                              14
disease or defect rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the proceedings against him

or to assist properly in his defense.” Id. Second, if the court decides to conduct a

competency hearing, it may order a psychiatric or psychological examination and

written report. Id. § 4241(b). Any such report shall include the examiner’s

opinions as to diagnosis, prognosis, and whether the defendant is mentally

incompetent. See id. §§ 4241(b), 4247(c)(4)(A). Third, after a proper hearing,4

the district court must find “by a preponderance of the evidence [whether] the

defendant is presently suffering from a mental disease or defect rendering him

mentally incompetent.”5 Id. § 4241(c), (d). If the defendant is deemed legally

incompetent, he will be hospitalized and treated until he is competent for the

proceedings to resume or the pending charges are disposed of according to law.

See id. § 4241(d).



       4
         Section 4241(c) provides that the competency hearing must conform to the provisions of
§ 4247(d), which states that the defendant “shall be represented by counsel” and “shall be
afforded an opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and
to confront and cross-examine witnesses who appear at the hearing.” See 18 U.S.C. §§ 4241(c),
4247(d).
       5
          Where the defendant files a motion to determine his mental competency, as Johns did in
this case, the burden of proof is on the defendant. See United States v. Izquierdo, 448 F.3d 1269,
1278 (11th Cir. 2006); see also Cooper v. Oklahoma, 517 U.S. 348, 362, 116 S.Ct. 1373, 1380
(1996) (dicta) (“Congress has directed that the accused in a federal prosecution must prove
incompetence by a preponderance of the evidence.”).

                                               15
      A district court’s denial of a § 4241 motion for a competency hearing, or its

decision not to hold such a hearing sua sponte, is reviewed for abuse of discretion.

See United States v. Nickels, 324 F.3d 1250, 1251 (11th Cir. 2003); United States

v. General, 278 F.3d 389, 396 (4th Cir. 2002) (“Whether reasonable cause exists is

a question left to the discretion of the district court.”). The decision whether to

order an examination is also reviewed for abuse of discretion. See United States v.

George, 85 F.3d 1433, 1437 (9th Cir. 1996) (“[E]ven if the existence of reasonable

cause requires a competency hearing, the court clearly has discretion to determine

whether an examination is also necessary. The statute’s language therefore

indicates that we should review a district court’s decision to deny an examination

for abuse of discretion.”); see also Nickels, 324 F.3d at 1251. Because “[a] district

court’s competency determination is primarily factual in nature,” United States v.

Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006), it is “subject to reversal only for

clear error,” United States v. Hogan, 986 F.2d 1364, 1371 (11th Cir. 1993). “A

finding of fact is clearly erroneous only when we are left with a definite and firm

conviction that a mistake has been committed.” Izquierdo, 448 F.3d at 1278

(quoting Hogan, 986 F.2d at 1372).

                                          A.




                                          16
       Johns contends that the district court’s finding that he was competent,

absent a formal competency examination, constitutes an abuse of discretion. He

argues that the court should have continued his sentencing hearing so that Dr.

Koch could formally evaluate his competency. Johns asserts that the court had a

“bona fide doubt” regarding his mental competency; in the language of § 4241(a),

Johns is arguing that a reasonable factfinder would have had “reasonable cause” to

believe that Johns may have been mentally incompetent. We note that Johns is

challenging the procedural adequacy of the court’s determination instead of the

substantive competency finding itself. See McGregor v. Gibson, 248 F.3d 946,

952 (10th Cir. 2001) (en banc) (“A procedural competency claim is based upon a

trial court’s alleged failure to hold a competency hearing, or an adequate

competency hearing, while a substantive competency claim is founded on the

allegation that an individual was tried and convicted while, in fact, incompetent.”).

Johns has not argued that the existing record compels a finding that he was

incompetent to be sentenced.6 Instead, he argues that the district court failed to

hold an adequate competency hearing before making its competency finding.


       6
          We would have rejected that argument had Johns presented it to us. Johns admits in his
brief, as he must, that “Dr. Koch was unable to give an opinion as to John’s competency.” In
addition, Dr. Koch acknowledged that the degree of Johns’s impairment was mild, that Johns
was able to communicate with him, and that John’s statement to the probation officer indicates
that Johns understood the seriousness of the charges against him.

                                               17
      The district court’s determination that Johns was competent to be sentenced,

even though Dr. Koch had not completed a formal competency evaluation, was not

an abuse of discretion. See Nickels, 324 F.3d at 1251; General, 278 F.3d at 396.

Dr. Koch had already performed an eight-hour psychological evaluation of Johns.

He testified that he had a “thorough understanding” of Johns and that he “fully

understood his condition.” The district court asked Dr. Koch a series of questions

eliciting that Johns’s degree of brain impairment was “in the mildest of categories”

and that Dr. Koch did not “experience any real difficulty” in communicating with

him. It was reasonable for the district court to give great weight to those specific

assessments. In addition, the court was aware of comments that Johns had made to

his probation officer indicating that Johns understood the seriousness of the

charges. Moreover, Johns personally apologized to the court and requested that

the court sentence him leniently, which confirmed that he understood the nature of

the proceedings and was able to communicate. We cannot say that the district

court abused its discretion by deciding, without continuing the sentencing hearing,

that it had no reasonable cause to believe that Johns may have been mentally

incompetent.

                                         B.




                                         18
      Johns also asserts in passing that he was legally incompetent at the time he

pleaded guilty, but all of his arguments focus on whether he was competent at the

time of the sentencing hearing—seven months after the plea colloquy. To the

extent that Johns has not abandoned this claim, see United States v. Jernigan, 341

F.3d 1273, 1284 n.8 (11th Cir. 2003), we can interpret it in two ways, neither of

which persuades us that the district court abused its discretion. First, Johns may

be arguing that the district court should not have accepted his guilty plea because,

at the time of the plea colloquy, the court had “reasonable cause” to believe he was

legally incompetent. See 18 U.S.C. § 4241(a). However, the record reflects that

the district court conducted a thorough plea colloquy to ensure that Johns was

competent. And Johns’s counsel informed the court that Johns was “fully

competent to enter a valid plea” and reiterated that observation before the court

accepted Johns’s guilty plea. The court did not abuse its discretion in accepting

Johns’s guilty plea.

      Second, Johns may be arguing that the district court, based on information it

learned after the plea colloquy, should have invalidated Johns’s guilty plea.

However, there is no evidence in the record to support that position. Soon after

the plea colloquy, Johns apologized to the probation officer, which indicated that

Johns communicated without difficulty and understood the seriousness of the

                                         19
charges. And the district court learned that Johns’s condition was better at the

time of the plea colloquy; it had deteriorated “since he entered his [guilty] plea.”

Dr. Koch’s testimony gave the court no reason to believe that Johns was

incompetent when he pleaded guilty, because Dr. Koch interviewed Johns several

months after the plea colloquy and his testimony was geared toward Johns’s

condition during the sentencing hearings. The district court therefore did not

abuse its discretion in failing to invalidate Johns’s guilty plea.

                                             III.

       Johns contends that his trial counsel was ineffective because he: (1) advised

Johns that he would only receive a two- to three-year sentence if he pleaded guilty;

(2) failed to request a continuance of the competency hearing to allow Dr. Koch to

properly evaluate Johns’s competence; (3) failed to file a motion to withdraw

Johns’s guilty plea; and (4) failed to object to a two-point enhancement that Johns

received for having a firearm present during the offense even though the firearm

was not mentioned in the indictment, guilty plea, or factual resume.7

       “We will not generally consider claims of ineffective assistance of counsel

raised on direct appeal where the district court did not entertain the claim nor



       7
         We review de novo claims of ineffective assistance of counsel. Chandler v. United
States, 218 F.3d 1305, 1312 (11th Cir. 2000) (en banc).

                                              20
develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th

Cir. 2002) (citation omitted). “In a few exceptional cases, however, we have taken

review of a claim of ineffective assistance of counsel raised for the first time on

[direct] appeal when the matter was fully apparent on the existing record.” United

States v. Gholston, 932 F.2d 904, 905 (11th Cir. 1991); see also Bender, 290 F.3d

at 1284 (“If the record is sufficiently developed . . . this court will consider an

ineffective assistance of counsel claim on direct appeal.”). As the Supreme Court

has instructed us, though, the preferred means for deciding a claim of ineffective

assistance of counsel is through a 28 U.S.C. § 2255 motion “even if the record

contains some indication of deficiencies in counsel’s performance.” Massaro v.

United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1694 (2003); see also United

States v. Patterson, 595 F.3d 1324, 1328–29 (11th Cir. 2010); Thomas v. United

States, 572 F.3d 1300, 1305 n.5 (11th Cir. 2009).

      Johns argues that the record is sufficiently developed because it is

undisputed that trial counsel neither sought a continuance to allow Dr. Koch to

conduct a formal competency evaluation or objected to the two-point firearm

enhancement. Those are just bare facts, however. We cannot meaningfully review

Johns’s allegations of ineffective assistance until the record is developed with

regard to trial counsel’s strategic decisions, his communications with Johns, and

                                           21
whether any arguably deficient performance was prejudicial under Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). We therefore dismiss without

prejudice the ineffective assistance claim part of Johns’s appeal.8

       AFFIRMED IN PART; DISMISSED WITHOUT PREJUDICE IN

PART.




       8
         This case was originally scheduled for oral argument, but the panel has unanimously
decided that it is unnecessary. See 11th Cir. R. 34-3(f).

                                              22
