     Case: 09-50250     Document: 00511047728          Page: 1    Date Filed: 03/10/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 10, 2010
                                     No. 09-50250
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BYRON SEGURA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:07-CR-1462-1


Before GARWOOD, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
        Byron Segura pleaded guilty to conspiracy to possess with the intent to
distribute 1000 kilograms or more of marijuana and was sentenced to 168
months of imprisonment. On appeal, Segura, represented by new counsel, for
the first time contends only that trial counsel was ineffective in counseling him
prior to his guilty plea. He contends that counsel’s failure to properly explain
the factual basis to him resulted in confusion. Segura asserts in a general
manner that counsel did not properly advise him of the factual basis and its

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-50250     Document: 00511047728 Page: 2           Date Filed: 03/10/2010
                                  No. 09-50250

consequences at sentencing. No claim of ineffective assistance of counsel was
raised below.
      Although Segura’s plea agreement contained a waiver-of-appeal provision,
Segura retained the right to bring a claim of ineffective assistance of counsel.
Thus, this appeal is not barred by the waiver. However, Segura’s challenge to
counsel’s effective assistance will not be reviewed by this court. Generally, this
court addresses claims on direct appeal of inadequate representation not raised
in the trial court only in rare cases where the record is adequate to allow the
court to consider the claim’s merits. United States v. Higdon, 832 F.2d 312, 313-
14 (5th Cir. 1987); United States v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007).1
In the instant case, the record is not sufficiently developed. The district court
had no opportunity to hold a hearing. See Aguilar, 503 F.3d at 436. Segura
failed to place on the record sufficient detail about trial counsel’s conduct and
motivations, and discussions with him, to allow this Court to make a fair
evaluation of the merits of Segura’s claim. See id. Therefore, this court declines
to consider this claim without prejudice to Segura’s right to raise it in a 28
U.S.C. § 2255 motion. See Massaro v. United States, 538 U.S. 500, 502-06 (2003)
(noting that habeas proceedings are the preferred method for raising an
ineffective assistance of counsel claim).
      Accordingly, the judgment of the district court is AFFIRMED.




      1
      The government requests that we affirm on the basis of this doctrine. We agree, but
make no determination as to whether the claim facially has even arguable merit.

                                           2
