                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       February 8, 2016

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                          No. 13-8055
v.                                             (D.C. Nos. 1:08-CV-00097-SWS &
                                                    2:00-CR-00059-NDF-1)
RAYMOND DEAN BROWN,                                        (D. Wyo.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before HARTZ, McKAY, and McHUGH, Circuit Judges.


      Raymond Dean Brown appeals the district court’s denial of his motion for

relief under 28 U.S.C. § 2255 based on claims of ineffective assistance of counsel.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse and remand.

      I. Background

      Mr. Brown was convicted after a jury trial of being a felon in possession of a

firearm, unlawfully possessing a machine gun, and carrying a machine gun during

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and in relation to a drug trafficking crime. He was ultimately sentenced to 30 months

on the first two counts and 360 months for the third count, to be served

consecutively.

         Mr. Brown subsequently sought relief from his convictions and sentences by

filing a § 2255 motion. The district court denied that motion and it also denied

Mr. Brown’s request for a certificate of appealability (COA). Mr. Brown then filed a

COA application in this court. We granted a COA on three issues, appointed counsel

for Mr. Brown, and ordered supplemental briefing.

         All three of the claims for ineffective assistance of counsel at issue on appeal

relate to information Mr. Brown provided to state authorities that he alleges led to his

federal charges and convictions for firearm violations. As we explained in our COA

order:

                Prior to being charged with federal crimes, Mr. Brown was
         charged with violations of state drug and firearms laws. While his state
         charges were pending, Mr. Brown met with state authorities and
         provided information about his criminal activities to receive
         consideration in his plea negotiations [(“the proffer meeting”)]. The
         state authorities informed Mr. Brown at the meeting that any
         information he provided would not be used against him in state court,
         but that the state could not bind federal authorities. Dennis Claman, one
         of the state agents present at the meeting, later repeated inculpatory
         statements made by Mr. Brown at the meeting to federal agents.
         Mr. Brown subsequently entered a plea of no contest in Wyoming state
         court to charges of possession of a controlled substance and operation of
         an unlawful clandestine laboratory.

                The week following his state proceedings, a federal grand jury
         returned an indictment charging Mr. Brown with three firearms
         offenses. Before trial, Mr. Brown moved to suppress the statements he
         made at the meeting with the state authorities, arguing that the use of

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         those statements would violate his Wyoming immunity agreement. The
         district court reserved ruling on the motion. Mr. Brown did not renew
         his suppression motion at trial and the government presented his
         statements through the testimony of Agent Claman without any defense
         objection. In our decision in Brown I, we reviewed the suppression
         issue for plain error and concluded that the district court did not err in
         admitting the statements[.]

United States v. Brown, No. 13-8055, at 3-4 (10th Cir. Jan. 14, 2015) (unpublished

COA order).

         On appeal, Mr. Brown argues that his trial counsel was ineffective for failing

to object to the admission of evidence from the proffer meeting, which he asserts

should have been excluded under Rule 410 of the Federal Rules of Evidence.1 He

also argues that trial counsel was ineffective for failing to investigate his immunity

agreement with the state and for failing to raise that as a basis for precluding the

1
    Rule 410 provides as follows:
         (a) Prohibited Uses. In a civil or criminal case, evidence of the
         following is not admissible against the defendant who made the plea or
         participated in the plea discussions:

         (1) a guilty plea that was later withdrawn;

         (2) a nolo contendere plea;

         (3) a statement made during a proceeding on either of those pleas under
         Federal Rule of Criminal Procedure 11 or a comparable state procedure;
         or

         (4) a statement made during plea discussions with an attorney for the
         prosecuting authority if the discussions did not result in a guilty plea or
         they resulted in a later-withdrawn guilty plea.

Fed. R. Evid. 410.


                                            -3-
admission of evidence in his federal trial regarding statements he made during the

proffer meeting. Finally, he contends that his state counsel provided ineffective

assistance during the proffer meeting by not protecting him from making self-

incriminating statements that subsequently led to him being charged and convicted of

federal crimes.

      II. Discussion

      “We review the district court’s legal rulings on a § 2255 motion

de novo and its findings of fact for clear error. A claim for ineffective assistance of

counsel presents a mixed question of fact and law, which we review de novo.”

United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006) (citations omitted).

      A) Trial Counsel’s Failure to Make a Rule 410 Objection

      In ground two of his § 2255 motion, Mr. Brown argued that his trial counsel

was ineffective for failing to object to the admission of testimony about statements he

made during the proffer meeting.2 The government argued below that the failure to

make a Rule 410 objection did not constitute ineffective assistance of counsel

because any such objection would have been futile as Rule 410 would not apply to




2
  In his § 2255 motion, Mr. Brown alleged that admitting his statements from the
proffer meeting violated Rule 11 of the Wyoming Rules of Criminal Procedure. That
rule is substantially similar to Rule 410 of the Federal Rules of Evidence. Both the
government and the district court construed his argument as also alleging that
admitting his statements violated Rule 410, as that is the rule that applies to trials in
federal court. See R., Vol. I at 846-47, 847 n.4; id. at 1589-91, 1590 n.3.


                                          -4-
Mr. Brown because he had ultimately pled guilty to the state charges. In denying

Mr. Brown’s claim, the district court adopted the government’s reasoning.

       The government now concedes on appeal that Mr. Brown did not in fact plead

guilty to the state charges, but instead entered a no contest plea, and therefore the

district court’s ruling is incorrect. The government goes on, however, to provide an

alternative argument for denying Mr. Brown’s claim of ineffective assistance of

counsel. But the problem is that this alternative argument was never presented to the

district court.

       Although we have discretion to affirm on any ground adequately supported by

the record, the exercise of that discretion is guided by three considerations: (1) was

the alternate ground “fully briefed and argued here and below”; (2) did the parties

have “a fair opportunity to develop the factual record”; and (3) “whether, in light of

factual findings to which we defer or uncontested facts, our decision would involve

only questions of law.” Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004)

(brackets omitted).

       The argument the government is now making was not briefed or argued below

and Mr. Brown did not have a chance to respond to it below. As noted above, claims

for ineffective assistance of counsel present mixed questions of law and fact, Orange,

447 F.3d at 796, and the government’s new argument raises factual issues about

defense counsel’s trial strategy. The parties have not had a chance to develop a

factual record on those issues.


                                          -5-
       Under these circumstances, the best course is to reverse the district court’s

disposition of this claim and to remand for further proceedings. See Evers v. Regents

of Univ. of Colo., 509 F.3d 1304, 1310 (10th Cir. 2007) (remanding to the district

court and explaining that instead of “examining and resolving the merits of [the

defendant’s alternate] contentions, . . . [the court would] adopt the better practice of

leaving the matter to the district court in the first instance”).

       B) Trial Counsel’s Failure to Investigate and Litigate the Immunity Agreement

       In ground twelve of his § 2255 motion, Mr. Brown argued that his trial counsel

provided ineffective assistance by failing to investigate his immunity agreement with

the state and by failing to raise that as a basis for not admitting evidence of

statements he made during the proffer meeting during his trial (which led to the issue

being reviewed on appeal for plain error). The government argued that this issue was

raised and resolved on direct appeal and therefore it could not be raised again in a

§ 2255 motion. In denying this claim, the district court adopted the government’s

reasoning.

       Courts typically do not review § 2255 claims if they have been raised and

resolved on direct appeal. See Abernathy v. Wandes, 713 F.3d 538, 549-50 (10th Cir.

2013) (“[U]nder the law-of-the case doctrine, courts ordinarily . . . refuse to

reconsider arguments presented in a § 2255 motion that were raised and adjudicated

on direct appeal.”). Although Mr. Brown did raise on appeal an issue regarding the

admissibility of certain statements and whether their admission violated his immunity


                                            -6-
agreement, he did not raise this claim for ineffective assistance of counsel. See

United States v. Brown, 400 F.3d 1242, 1255-56 (10th Cir. 2005). It would have

been unusual for Mr. Brown to do so—and we would likely have declined to consider

such a claim if he did—because we do not generally consider claims for ineffective

assistance of counsel on direct review. See United States v. Galloway, 56 F.3d 1239,

1242 (10th Cir. 1995) (explaining that only “rare claims [of ineffective assistance of

counsel,] which are fully developed in the record” may be brought on direct appeal).

Instead, the proper course is to raise those claims in a collateral proceeding, as

Mr. Brown did here. See id. (“The rule in this circuit . . . is that claims of

constitutionally ineffective counsel should be brought on collateral review, in the

first petition filed under 28 U.S.C. § 2255.”).

      On appeal, the government no longer argues that this claim should be denied

because it was raised in Mr. Brown’s direct appeal. Instead, the government argues

the claim should be denied on the merits. Because Mr. Brown’s claim for ineffective

assistance of counsel was not raised and resolved on direct appeal, the district court

erred in denying it on that basis. As the court never reached the merits of this claim

due to its procedural dismissal, the claim should be remanded for the district court to

consider the merits in the first instance. Remand is especially appropriate here

because ineffective-assistance-of-counsel claims are fact intensive and the district

court is “the forum best suited to developing the facts necessary to determining the

adequacy of representation,” Massaro v. United States, 538 U.S. 500, 505 (2003).


                                           -7-
         C) State Counsel’s Failure to Protect Mr. Brown at the Proffer Meeting

         In the supplement to ground twelve in his § 2255 motion, Mr. Brown argued

that his state counsel provided ineffective assistance during the proffer meeting by

not protecting him from making self-incriminating statements that subsequently led

to him being charged and convicted of federal crimes. This issue was properly raised

in Mr. Brown’s § 2255 motion, but the government did not address this claim in its

response to the motion and the district court likewise did not discuss this claim in its

decision.3 The district court therefore erred in failing to address the merits of this

claim.

         The government argues on appeal that this claim should be denied on the

merits. But again, as with the other two claims for ineffective assistance of counsel,

it is not appropriate for us to resolve this claim on the merits in the first instance. We

therefore remand this claim to the district court for further consideration.

         III. Conclusion

         We reverse and vacate that portion of the district court’s decision denying

Mr. Brown’s claims for ineffective assistance of counsel addressed in this appeal

(grounds two, twelve, and the supplement to ground twelve). We remand for further

proceedings consistent with this order and judgment. On remand, the district court
3
  Although Mr. Brown refers to this claim as a “supplement” to ground twelve, it was
filed as part of his initial § 2255 motion and is appended to the end of his section on
grounds twelve, thirteen, and fourteen. See R., Vol. I at 539-51 (grounds twelve,
thirteen, and fourteen); id. at 552-55 (supplement to grounds twelve, thirteen, and
fourteen).


                                           -8-
should consider appointing counsel for Mr. Brown, providing both parties an

opportunity to file supplemental briefs, and holding an evidentiary hearing if

necessary.

      We also grant Mr. Brown’s unopposed motion for leave to file his

supplemental reply brief out of time.


                                               Entered for the Court


                                               Carolyn B. McHugh
                                               Circuit Judge




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