              Case: 14-10144    Date Filed: 08/13/2014   Page: 1 of 4


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 14-10144
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 7:13-cr-00201-LSC-HGD-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

ANTONIO TREMAIN LOCKETT,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                 (August 13, 2014)

Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Antonio Tremain Lockett was convicted, pursuant to a plea agreement, of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He
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now appeals his conviction and 70-month sentence, arguing that his court-

appointed trial counsel rendered ineffective assistance by advising him to sign a

plea agreement that unnecessarily admitted that he used the firearm during an

armed robbery. Lockett believes his counsel should have known that the facts set

forth in the plea agreement (1) were not necessary for conviction under

§ 922(g)(1), (2) would likely be used to, and indeed were used to, enhance his

sentence under United States Sentencing Guideline (USSG) §§ 2K2.1(c), 2X1.1,

and 2B3.1, and (3) would all but assure his conviction for robbery in his still-

pending state proceeding. Given the state of the record on appeal, we decline to

pass on Lockett’s ineffectiveness claim at this time.

      “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

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

2002). Even in those cases where the record “contains some indication of

deficiencies in counsel’s performance,” a motion for habeas corpus under 28

U.S.C. § 2255 remains “[t]he preferred means for deciding a claim of ineffective

assistance of counsel.” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir.

2010) (quotation mark omitted).

       Although this case presents a close call, our general rule favoring resolution

of ineffectiveness claims in habeas proceedings should be applied. There is much


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about this case that gives us pause. For example, it seems clear that any competent

counsel would have been aware that Lockett’s plea agreement included an

admission that he possessed the firearm in connection with a robbery. Even so, the

record here strongly suggests that Lockett’s counsel failed to understand this.

Counsel’s written objection to the application of the sentence enhancement states

that Lockett “maintains that he did not participate or use any firearm in any other

offense.” Counsel went on during the sentence hearing to explain that the

enhancement should not be applied because the robbery charges were “still

pending, not yet been proven.” Of course, that no longer mattered given Lockett’s

admission of the factual basis in his guilty plea, which, it bears mention, his

counsel did not attempt to withdraw before or during the sentence hearing.

Nevertheless, the question of whether the advice Lockett received could possibly

meet the minimum standard of professional competency set forth in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), will be left for another day.

      We do not think the record is sufficiently developed at this stage for us to

fully and fairly decide whether Lockett’s counsel’s performance was deficient, or

whether he was prejudiced by deficient performance. Because Lockett did not

challenge his counsel’s competency before the District Court, there is no direct

evidence about what advice counsel did give, and what Lockett’s reaction to that

advice was. What we do know from the hearing on counsel’s motion to withdraw


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is that there was some dispute about what advice was and was not given during the

plea process. Resolution of Lockett’s ineffective assistance of counsel claim

would thus benefit greatly from the development of a more comprehensive record

in a collateral attack brought under 28 U.S.C. § 2255. For this reason, we decline

to resolve the issue in this appeal.

      AFFIRMED.




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