Ramirez v. United States ( 1998 )

[NOT FOR PUBLICATION]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.
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