
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2129                                   RAMIRO RAMIREZ,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ernest C. Torres, U.S. District Judge],                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Ramiro Ramirez on brief pro se.            ______________            Sheldon Whitehouse,  United  States Attorney,  Margaret E.  Curran            __________________                             ___________________        and Kenneth P. Madden, Assistant United States Attorneys, on brief for            _________________        appellee.                                 ___________________                                   February 5, 1998                                 ____________________                 Per Curiam.   Upon careful review of the  briefs and the                 __________            record, we conclude  that our opinion in  petitioner's direct            appeal, United States v. Tabares, 951 F.2d 405, 409 (1st Cir.                    _____________    _______            1991),  did not  adjudicate  petitioner's specific  claim  of            ineffective  assistance  of  counsel,  namely  that,  without            petitioner's  consent,  during  closing  argument, his  trial            attorney  conceded petitioner's guilt to weapons counts.  Our            prior opinion expressly  refrained from ruling on  any "claim            that involves matters outside the trial record itself," which            would include the specific ineffective assistance  of counsel            claim  that  petitioner  now  raises,  and  particularly  the            factual  question   whether  petitioner   consented  to   the            concession of guilt.  Accordingly, that claim should not have            been dismissed  as "a matter  raised and  properly denied  on            direct  appeal."  Of course,  we intend no comment whatsoever            on the merit, if any, of the claim, but only conclude that it            was dismissed prematurely.                 We note from the appellate record that there may be some            dispute about  the signatures  on petitioner's  filings.   In            these  circumstances,  we  cannot  say  that  an  evidentiary            hearing necessarily will be required.  We leave that question            of procedure  to the district  court, upon its review  of the            papers before it  and its determination whether  a sufficient            disputed factual issue has been  joined.  See David v. United                                                      ___ _____    ______            States, No.  97-1398, 1998 WL  21848, at *6-7 (1st  Cir. Jan.            ______                                         -2-            27, 1998), quoting United States v. McGill, 11 F.3d 223, 225-                       _______ _____________    ______            26 (1st Cir. 1993).                 The judgment of  dismissal is vacated,  and the case  is                                               _______            remanded  to  the  district  court  for  further  proceedings            ________            consistent with this opinion.                                         -3-
