United States v. Burdick , 80 F. App'x 687 ( 2003 )

Not for publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2347
UNITED STATES OF AMERICA,
Appellee,
v.
HARRY J. BURDICK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges.
Warren M. Yanoff, with whom Yanoff & Valletta was on brief,
for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief, for the
United States.
November 13, 2003
Per Curiam. On December 18, 2000, a federal grand jury
in the District of Rhode Island returned an indictment charging,
inter alios, defendant-appellant Harry J. Burdick with conspiracy
to commit carjacking and carjacking with death resulting. See 18
U.S.C. §§ 371, 2119, 2119(3). In due course, Burdick pled guilty
to both counts pursuant to a plea agreement that pretermitted the
possibility of a death sentence.
The district court convened the disposition hearing on
October 8, 2002. The court set Burdick's base offense level at 43.
With a three-level reduction for acceptance of responsibility, USSG
§3E1.1, the offense level dipped to 40. Given his 14 criminal
history points, the court placed him in criminal history category
VI. These determinations yielded a guideline sentencing range of
360 months to life imprisonment. Burdick neither contested these
calculations nor sought a downward departure. The government,
however, asked the court to depart upward (the presentence
investigation report noted five possible bases for an upward
departure).
During his allocution, Burdick stated: "I want to say
that I feel that I deserve life imprisonment. I don't belong on
the streets." He then told the court that: "I deserve the maximum
sentence which is life in prison." Burdick's counsel adopted the
same stance, recommending the imposition of a life sentence. The
court denied the government's motion for an upward departure but
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nonetheless granted Burdick's request for a life sentence (the
highest sentence available within the applicable guideline range).
The court concluded: "If I had the power to impose the death
sentence, I would."
We need not tarry. On appeal, Burdick is represented by
a new attorney. He does not challenge any of the district court's
guideline computations; instead, he claims that he received
ineffective assistance of counsel at sentencing. According to
Burdick, this substandard performance consisted of (i) his original
lawyer's failure to develop evidence concerning his mental status,
and (ii) her willingness to recommend life imprisonment (the
sentence that Burdick himself implored the court to impose).
This fact-specific claim has never been presented to the
lower court. Consequently, it is premature. In United States v.
Mala, 7 F.3d 1058 (1st Cir. 1993), we wrote:
We have held with a regularity bordering on
the monotonous that fact-specific claims of
ineffective assistance cannot make their debut
on direct review of criminal convictions, but,
rather, must originally be presented to, and
acted upon by, the trial court.
Id. at 1063. We explained the reason for the rule:
Since claims of ineffective assistance involve
a binary analysis — the defendant must show,
first, that counsel's performance was
constitutionally deficient and, second, that
the deficient performance prejudiced the
defense — such claims typically require the
resolution of factual issues that cannot
efficaciously be addressed in the first
instance by an appellate tribunal.
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Id. (citations omitted). We then described the usual praxis for
litigating such claims:
When faced with similar situations in
comparable cases, we have routinely dismissed
the relevant portion of the appeal without
prejudice to the defendant's right to litigate
his ineffective assistance claim through the
medium of an application for post-conviction
relief.
Id.Although we have made an occasional exception in cases in
which the record is fully developed on all aspects of the
ineffective assistance claim, see, e.g., United States v. Natanel,
938 F.3d 302, 309 (1st Cir. 1991), the Mala rule has for the most
part been followed assiduously. See, e.g., United States v.
Martinez-Vargas, 321 F.3d 245, 251 (1st Cir. 2003); United States
v. Genao, 281 F.3d 305, 313 (1st Cir.), cert. denied, 123 S. Ct.
216 (2002); United States v. Hoyle, 237 F.3d 1, 8 (1st Cir.), cert.
denied, 122 S. Ct. 343 (2001); United States v. Ademaj, 170 F.3d
58, 64 (1st Cir. 1999). Indeed, the Supreme Court recently placed
its imprimatur on this approach. See Massaro v. United States, 123
S. Ct. 1690, 1692-96 (2003).
We follow the Mala rule here. The narrow exception to it
is plainly inapposite because there has been no development of a
number of material facts. On the present record, it is impossible
to gauge what investigation defense counsel undertook, what further
investigation (if any) might have been appropriate, what benefit
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such further investigation might have yielded, or what interactions
between Burdick and his attorney might have influenced the
sentencing recommendation.
We need go no further. We affirm the judgment below,
without prejudice, however, to appellant's right to raise his claim
of ineffective assistance of counsel in a post-conviction relief
proceeding brought pursuant to 28 U.S.C. § 2255. We intimate no
view as to the outcome of any such proceeding.
It is so ordered.
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