                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                   FILED
                                                       U.S. COURT OF APPEALS
                             _____________               ELEVENTH CIRCUIT
                                                         SEPTEMBER 7, 2006
                              No. 04-15524                THOMAS K. KAHN
                             _____________                     CLERK


                 D.C. Docket No. 03-00162-CR-T-24-TBM



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

versus

CHADDRICK LEVELL THOMAS,

                                               Defendant-Appellant.



                              ____________

                Appeal from the United States District Court
                    for the Middle District of Florida
                              ____________


                           (September 7, 2006)


Before TJOFLAT, BARKETT and HILL, Circuit Judges.
PER CURIAM.

      Chaddrick Levell Thomas was convicted of two counts of violent bank

robbery, in violation of 18 U.S.C. § 2113(a) and (d), and two counts of using,

carrying, and possessing a firearm during and in relation to and in furtherance of a

crime of violence, in violation of 18 U.S.C. § 924(c); and conspiracy to use

firearms during a crime of violence, in violation of 18 U.S.C. § 924(o). Thomas

appeals his convictions and sentence. The government concedes Booker error in

Thomas’s sentencing, so the case will be remanded for re-sentencing. We remand

in connection with his ineffective assistance of counsel claim as well. All other

assignments of error are without merit.

                                          I.

      Following the jury’s guilty verdicts, Thomas filed a pro se motion, alleging

that his trial counsel, Thomas Ostrander, had been “asleep during witness

testimony, plaguing the trail with prejudice.” The district court granted an

evidentiary hearing on Thomas’s allegations, and appointed Bjorn Brunvand to

represent Thomas at the hearing.

      At the evidentiary hearing regarding Ostrander’s performance, Thomas

testified, referring to handwritten notes regarding Ostrander’s sleeping that he said

he took during the trial. He testified that Ostrander had fallen asleep on three

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separate occasions. On the first of these occasions, Thomas testified that the

United States Marshall in the courtroom called his attention to his counsel’s

sleeping by catching his eye and nodding toward Ostrander. He testified that she

signaled to him to nudge Ostrander to awaken him, which he did. Thomas also

testified that “there was some evidence the [United States] Attorney wanted to

introduce, and the judge . . . asked if Mr. Ostrander objected to that , and Mr.

Ostrander jumped up and said no questions for the witness” despite that Ostrander

had not been asked to question the witness. The witness on the stand throughout

this incident was Sharon Delamain, a bank teller who witnessed one of the

robberies.

      Thomas also testified that he observed Ostrander sleeping on two other

occasions, both times during the testimony of Scotty Carpenter, a co-defendant

who testified against Thomas.

      Deputy Lisa Alfonso of the United States Marshal Service confirmed

Thomas’s testimony regarding the first incident. She testified that she recalled the

occasion during trial when Ostrander was “snoring,” that the snoring had gone on

“for quite a few seconds,” and that she had gestured to Thomas to “nudge”

Ostrander. Marshal Alfonso also testified that on this occasion several of the

jurors also noticed Ostrander’s snoring. She testified that Ostrander’s snoring

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went on “periodically” throughout the trial, with his head down, and his eyes

closed. She was unable to specify which witnesses were on the stand during these

episodes.

      Fred Bohlig, the court security officer also supported Thomas’s and

Alfonso’s observations of Ostrandrer’s sleeping . He testified that a juror

approached him near the jury room and told him that “she didn’t think it was fair

that Mr. Thomas’s attorney was asleep.” Bohlig was unable to identify what

witnesses or witnesses might have been on the stand when the juror observed

Ostrander sleeping.

      Ostrander testified that, during the trial, he had been taking a medication for

his diabetes that caused him to be very sleepy, and that at times he had been

“struggling to stay awake.” He agreed with the witnesses that he might have

“nodded off or snored.” He acknowledged that Thomas had “nudged me” and

asked “are you okay?”

                                          II.

      After the hearing, the district court issued its opinion denying the ineffective

assistance of counsel claim. Based upon its own observation, the court

specifically found that “at no time during the during (sic) the trial, which

encompassed approximately 22 hours, did the Court witness attorney Ostrander

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nodding off, sleeping or otherwise inattentive.” Nonetheless, based upon the

transcript, the court held that Ostrander “may have fallen asleep” on the one

occasion during the testimony of Dalamain when the transcript reflects that

Ostrander replied inappropriately to the court’s query regarding admission of an

exhibit. The court rejected the idea that sleep during this witness was prejudicial,

however, because Dalamain’s testimony went to an undisputed issue.

      With respect to Thomas’s claim that Ostrander slept on two other occasions,

during a co-defendant’s crucial testimony, the court specifically rejected his

testimony, finding it vague as to the second occasion and contradictory with the

transcript as to the time Ostrander slept on the third occasion. The court did not

address the testimony of Alfonso that she observed Ostrander “periodically

snoring” or Bohlig’s testimony regarding the juror’s comment.

                                         III.

      We agree with the Second Circuit, that “sleeping counsel is tantamount to

no counsel at all.” United States v. DiTommaso, 817 F.2d 201, 216 (2d Cir. 1987).

A claim that counsel slept through parts of a trial is a serious one that we must

consider carefully. The Fifth Circuit has held that “credible evidence that defense

counsel repeatedly slept” through portions of a trial, “compels the presumption

that counsel’s unconsciousness prejudiced the defendant.” Burdine v. Johnson,

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262 F.3d 336, 338 (5th Cir. 2001).

      The troubling aspect of this issue in this case is that the district court was

put in the position of both having to supply facts regarding Ostrander’s sleeping as

well as having to resolve factual differences between his own observations and

those of others, including the defendant and court officers. While there is nothing

wrong with the court serving as a witness, the court should not be put in the

uncomfortable position of having to serve as both witness and fact finder,

especially in this case where defendant’s testimony was corroborated by court

personnel.

      We conclude, therefore, that a motion for new trial was not the appropriate

vehicle for the resolution of the issue of ineffective assistance of counsel in this

case. The proper resolution of this issue requires that the two vital functions of

witness and fact finder be separated. This can be accomplished by a motion filed

pursuant to 28 U.S.C. § 2255. Therefore, we decline to rule on the claim of

ineffective assistance of counsel based upon the insufficiency of the record at this

time. United States v. Gholston, 932 F.2d 904, 905-06 (11th Cir. 1991).

                                          IV.

      Accordingly, this case is remanded for re-sentencing. We decline to rule on

the ineffective assistance of counsel claim, holding that the record is insufficiently

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developed to permit our review. As to all other assignments of error, the judgment

is affirmed.

      AFFIRMED IN PART, SENTENCE VACATED, REMANDED.




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