United States v. Isaiah Perkins , 584 F. App'x 852 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 30 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10214
Plaintiff - Appellee, D.C. No. 2:12-cr-00354-LDG-CWH-1
v.
MEMORANDUM*
ISAIAH ALJAVAR-MARTELL
PERKINS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, Senior District Judge, Presiding
Submitted August 13, 2014**
San Francisco, California
Before: KOZINSKI, Chief Judge, and McKEOWN and CLIFTON, Circuit Judges.
Isaiah Perkins appeals his conviction on two counts of being a prohibited
person in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(9) and
924(a)(2). Perkins’s sole challenge to his conviction is that his attorney provided
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
him with ineffective assistance of counsel at trial by opposing the government’s
motion in limine to exclude certain evidence as irrelevant, violating the district
court’s order granting the motion in limine by mentioning the evidence at trial and
by not seeking an instruction on the affirmative defense of entrapment by estoppel.
We “permit[] ineffective assistance claims to be reviewed on direct appeal
only in the unusual cases where (1) the record on appeal is sufficiently developed
to permit determination of the issue, or (2) the legal representation is so inadequate
that it obviously denies a defendant his Sixth Amendment right to counsel.”
United States v. Rahman, 642 F.3d 1257, 1260–61 (9th Cir. 2011). Neither
exception applies. Perkins concedes that an entrapment by estoppel defense might
have failed, and this record is not sufficiently developed to evaluate his probability
of success. Therefore, his appeal must be dismissed. As long as Perkins remains
under supervised release, he may raise his ineffective assistance claim through the
more usual route of collateral attack under 28 U.S.C. § 2255. See Massaro v.
United States, 538 U.S. 500, 504–05 (2003); Matus-Leva v. United States, 287
F.3d 758, 761 (9th Cir. 2002). In doing so, Perkins will have the opportunity to
develop the record to encompass all aspects of his attorney’s performance.
DISMISSED.
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