                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAY 16 2003
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                        No. 02-1223
          v.                                     (D. Ct. No. 01-CR-173-N)
                                                         (D. Colo.)
 DON CARNEY,

               Defendant-Appellant.




                           ORDER AND JUDGMENT *


Before TACHA, Chief Judge, BRORBY, and O’BRIEN, Circuit Judges.



      Defendant-Appellant Don Carney pled guilty to one count of misapplication

of bank funds, in violation of 18 U.S.C. § 656, and one count of making a false

entry in a bank record, in violation of 18 U.S.C. § 1005. The district court

sentenced Mr. Carney to eighteen months imprisonment. Mr. Carney filed a

timely notice of appeal on May 13, 2002. We exercise jurisdiction pursuant to 28



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 1291 and dismiss Mr. Carney’s claims without prejudice.

                                    I.    B ACKGROUND

       On appeal, Mr. Carney argues that he was deprived of his Sixth

Amendment right to counsel based on his trial counsel’s failure to seek downward

sentencing departures for “multiple causation” and the absence of financial gain.

Mr. Carney did not raise his ineffective assistance of counsel claim before the

district court prior to initiating this appeal. 1

                                    II.    D ISCUSSION

       This court has stated that, ordinarily, “[i]neffective assistance of counsel

claims should be brought in collateral proceedings, not on direct appeal.” United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Accordingly,

“[s]uch claims brought on direct appeal are presumptively dismissible, and

virtually all will be dismissed.” Id. As we noted in Galloway, the reason for this

rule is straightforward:

       A factual record must be developed in and addressed by the district
       court in the first instance for effective review. Even if evidence is
       not necessary, at the very least counsel accused of deficient
       performance can explain their reasoning and actions, and the district
       court can render its opinion on the merits of the claim.

Id. (footnote omitted). This rule “encourages development of a record on the


       1
        Although Mr. Carney raised ineffective-assistance arguments in a post-
trial motion for release pending appeal, he did not raise all of his ineffective
assistance of counsel claims in the district court.

                                            -2-
tactical reasons for trial counsel’s decisions, the extent of trial counsel’s alleged

deficiencies, and the asserted prejudicial impact on the outcome of the trial.”

Beaulieu v. United States, 930 F.2d 805, 807 (10th Cir. 1991), overruled in part

by Galloway, 56 F.3d at 1241.

      The Supreme Court recently approved of this circuit’s approach in Massaro

v. United States, __ U.S. __, 123 S.Ct. 1690 (2003). In Massaro, the Supreme

Court considered a Second Circuit rule, originally set forth in Billy-Elko v. United

States, 8 F.3d 111 (2d Cir. 1993), requiring that a criminal defendant raise

ineffective-assistance claims on direct appeal when the defendant is represented

by new counsel on appeal and the ineffective assistance claim is based solely on

the record made at trial, and further providing that a party’s failure to do so

ordinarily results in the claim being procedurally barred, absent a showing of

cause and prejudice.

      The Supreme Court reversed, refusing to adopt the Second Circuit’s rule.

However, although the Court held that ineffective assistance of counsel claims

should ordinarily be brought in a collateral proceeding under 28 U.S.C. § 2255,

the Court recognized certain situations in which such claims would be

appropriately considered on direct appeal. Id. at 1696. Specifically, the Court

stated:

      We do not hold that ineffective-assistance claims must be reserved for
      collateral review. There may be cases in which trial counsel’s

                                          -3-
      ineffectiveness is so apparent from the record that appellate counsel will
      consider it advisable to raise the issue on direct appeal. There may be
      instances, too, when obvious deficiencies in representation will be
      addressed by an appellate court sua sponte.

Id.(emphasis added); see also United States v. Gallegos, 108 F.3d 1272, 1279-80

(10th Cir. 1997) (stating that where claim of ineffective assistance is well-

documented in the record and where defendant asserted her claim at trial and in a

post-trial motion that was ruled on by the district court, the court would review

her claim on direct appeal); United States v. Carter, 130 F.3d 1432, 1442 (10th

Cir. 1997) (noting that where the record has been sufficiently developed by the

district court, the court of appeals “can agree to consider the claim on direct

appeal”).

      Here, Mr. Carney contends that the record from the two sentencing hearings

is sufficient for this court to consider his ineffectiveness-assistance claims. We

disagree. The record before us does not conclusively demonstrate either the

presence or absence of “tactical reasons for trial counsel’s decision.” Beaulieu,

930 F.2d at 807. Thus, this is not a situation where the alleged ineffectiveness is

“so apparent” from the record that we should hear the claim on direct appeal.

Massaro, 123 S. Ct. at 1696.

                                 III.   C ONCLUSION

      For the foregoing reasons, we DISMISS Mr. Carney’s appeal without



                                         -4-
prejudice to Mr. Carney’s right to raise his ineffective assistance of counsel

claims in a collateral proceeding.




                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Chief Circuit Judge




                                         -5-
