* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 20, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v.JUAN MANUEL CARBAJALMORENO, Defendant-Appellant. No. 04-2206 (D.C. No. CR-99-777) (D. N.M.)

ORDER AND JUDGMENT *

Before EBEL , BALDOCK , and LUCERO , Circuit Judges. Juan Manuel Carbajal-Moreno appeals the district co urt’s denial of his motion for a new trial. Seeking a new trial on the basis of “newly discovered evidence,” Carbajal-Moreno argues that sometime aft er his convictions were entered he discovered that his trial attorney surre ndered his Bar license prior to trial. The district court construed Carbajal-Moren o’s motion as asserting ineffective assistance of counsel and denied the mo tion, concluding that-2-

ineffective assistance of counsel claims should be brought in collateral proceedings. We exercise jurisdiction under 28 U.S .C. § 1291 and AFFIRM

. I John Hedderman filed a “Resignation with Charges Pe nding” with the California State Bar, which the Supreme Court of Ca lifornia accepted on January 4, 2001. On January 23rd, Hedderman entered his ap pearance as counsel for Carbajal-Moreno and on February 1st, he filed an ap plication to appear pro hac vice in the court below. In this application, Hedd erman stated that he was admitted to practice law before the Supreme Court o f California, that he was in good standing with the court, and that he was not c urrently suspended or disbarred. On February 3rd the California State Bar listed Hedderman as “resigned” and on February 5th the court below granted Hedderman’s application to appear pro hac vice. Hedderman represented Carb ajal-Moreno at trial, at which the defendant was convicted of eight counts relatin g to a conspiracy to sell marijuana. Thirty-five months after the jury verdict, Carbajal -Moreno filed a motion for a new trial, arguing that his discovery that He dderman had resigned his Bar license constituted new evidence. In substance, Carbajal-Moreno argued that Hedderman’s lack of Bar membership constituted inef fective assistance of counsel. After receiving a response, a reply, and a supplemental response, the1 Carbajal-Moreno argues that the appropriate standard of review is de novo

because, he argues, the district court based its de cision on a question of law. See United States v. Austin , 231 F.3d 1278, 1281 (10th Cir. 2000) (“When the determination of a new trial turns on an issue of l aw, however, the determination is reviewed de novo.”). The relevant question of l aw, according to the defendant, is “whether the participation by a disbarred attorn ey or an attorney who voluntarily relinquished his privilege to be a lice nsed attorney in good standing with any recognized lawyer’s bar placed ‘the underl ying fairness of the entire trial in doubt.’” Appellant’s Reply Br. at 1-2 (quoting United States v. Soussi , 316 F.3d 1095, 1109 (10th Cir. 2002)). That is not, ho wever, the question that we review in this case. The district court based its denial on its conclusion that “Defendant’s claim should be brought in a collatera l proceeding pursuant to 28 U.S.C. § 2255,” and denied an evidentiary hearing. The court specified that it was not reaching the merits of Carbajal-Moreno’s cl aim. We have applied the abuse of discretion standard where the district cou rt denied an evidentiary hearing and a motion for a new trial based on ineffective a ssistance, and do so now. United States v. Sands , 968 F.2d 1058, 1066 (10th Cir. 1992). We apply ade novo standard not when a district court decides, wi thin its discretion, that a motion for a new trial is an inappropriate vehicle for bringing a certain claim, but rather when deciding the merits of the new trial mo tion involves reaching a question of law. See, e.g. , Morgan v. City of Albuquerque , 25 F.3d 918, 919 (10th Cir. 1994) (“the issue in this case turns on the district court’s determination of a question of law, namely the applicability of t he rules on peremptory jury -3- district court denied the motion without a hearing. The court based its denial on longstanding precedent holding that ineffective ass istance claims should be brought in collateral proceedings and not on directreview. In so doing, the court expressed “no opinion on the merits or timeliness o f the Defendant’s claim, as it is not properly before the Court at this stage in t he proceedings.” II We review the denial of a motion for a new trial fo r an abuse of discretion. United States v. Sinclair , 109 F.3d 1527, 1531 (10th Cir. 1997). 1 We have heldstrikes to physical disability. We therefore revie w the district court’s

determination of that question de novo.”); Austin , 231 F.3d at 1281 (“Whether the Sixth Amendment prohibits a judge from responding t o a jury question by directing it to make its verdict and any appended c omments consistent is a question of law that this court reviews de novo.”).

-4- repeatedly that “[i]neffective assistance of counse l claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all wi ll be dismissed.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc); se e also United States v. Boigegrain , 155 F.3d 1181, 1186 (10th Cir. 1998) (“Normally, we require criminal defendants alleging ineffective as sistance of counsel to obtain a ruling by a district court on their argument by wayof a motion pursuant to 28 U.S.C. § 2255.”); United States v. Yates , 22 F.3d 981, 986 (10th Cir. 1994) (“a claim of ineffective assistance of counsel which re quires the development of a record, will not be heard on direct appeal, but mus t be brought in a collateral proceeding.”). Our insistence that, except in extraordinary circum stances, defendants must bring ineffective assistance of counsel claims in c ollateral proceedings extends to motions for a new trial. In United States v. Avela r , 80 F.3d 430 (10th Cir. 1996), a defendant attempted to raise ineffective assistan ce of counsel as grounds for a new trial. The relevant fact in Avelarwas that defense counsel failed to-5-

accompany his client to a post-indictment meeting w ith law enforcement where the defendant confessed to the crime. On appeal of the district court’s denial of the motion for a new trial, we relied on Gallowayto “hold that Avelar’s ineffective assistance of counsel claim should be b rought on collateral review.” Id. at 431. Proceedings adjudicating claims raised in § 2255 motions provide the best avenue for deciding assertions of ineffective assistance of counsel. Our decision in United States v. Stevens , 978 F.2d 565 (10th Cir. 1992), provides one example of why motions for new trials on the basis of newly discovered evidence serve as particularly inappropr iate vehicles for raising ineffective assistance of counsel claims. In Steve ns , a defense attorney was disbarred seven days before a criminal trial. Both the defendant and counsel were unaware of the disbarment until after the jury conv icted Stevens. The trial court denied Stevens’ motion for a new trial based on thi s “newly discovered evidence” and, on appeal, we applied the traditional test foradjudicating motions for new trials based on newly discovered evidence and affirmed. This test requires a defendant to prove, inter alia, that the new eviden ce “is material to the principal issue involved.” See id. at 570. We clarified that the “principal issue in volved” in the trial is “not the competence of [defendant’s ] lawyer” but rather the underlying crime. Id. We specifically held that because the principal i ssue involved was the defendant’s involvement in the cri me, his attorney’s “bar status-6-

is not material to the principal issue.” Id. It is difficult to imagine a situation where an attorney’s bar status would be material to the principal issue involved in a criminal trial. Moreover, having already conclud ed that defense counsel’s disbarment did not amount to a Sixth Amendment viol ation, we concluded that “it cannot possibly meet the higher new trial standard under Rule 33.” Id. Thus, a claim that an attorney’s bar status constitutes new ly discovered evidence ordinarily will not survive the test for deciding amotion for a new trial. Carbajal-Moreno argues that the district court abus ed its discretion by denying his motion for a new trial and cancelling ascheduled evidentiary hearing because this court has, in the past, considered cla ims of ineffective assistance of counsel on direct review. In fact, we have held th at “in rare circumstances where the record before us allows for a fair evaluation o f the merits of the claim . . . [a defendant may] seek a new trial as part of the orig inal criminal proceedings (rather than by way of collateral attack) on the gr ounds of ineffective assistance of counsel.” Sands , 968 F.2d at 1066 (emphasis added). However, simp ly because we have “considered ineffective assistance of counsel claims on direct appeal where such claims were adequately developed by the district court prior to appeal,” United States v. Gallegos , 108 F.3d 1272, 1280 (10th Cir. 1997), does not mean that a district court abuses its discretio n when it declines to develop the record. Adopting Carbajal-Moreno’s argument would require district courts to-7-

hold evidentiary hearings whenever they are present ed with motions for new trials based on ineffective assistance. This we decline t o do. Additionally, even in the “rare circumstances” wher e the record allows appellate review of a new trial claim based on inef fective assistance, “a defendant must identify specific facts and circumstances outs ide the record which, if proven, would entitle him to a new trial.” Sands , 968 F.2d at 1066. Importantly, the defendant in Sands did not move for a new trial claiming newly discov ered evidence. As Stevens illustrates, the extra record facts identified by CarbajalMoreno – those concerning Hedderman’s Bar status – do not pertain to the principal issue involved in the underlying trial, a nd therefore would not entitle Carbajal-Moreno to a new trial on the basis of newl y discovered evidence. The district court’s decision to deny the motion fo r a new trial and cancel the scheduled evidentiary hearing was not “arbitrary, capricious, whimsical, or manifestly unreasonable.” Austin , 231 F.3d at 1281. Deciding that ineffective assistance of counsel claims should ordinarily be r aised on collateral attack rather than in a motion for a new trial does not amount to an error of law. Rather, such a decision stems directly from our precedent. See Soussi , 316 F.3d at 1108 (“A district court abuses its discretion if it makes anerror of law.”). We therefore conclude that the district court did not abuse its discretion.-8-

In reaching this conclusion, we do not express any opinion as to the underlying merits of Carbajal-Moreno’s Sixth Amendm ent claim. We hold only that Carbajal-Moreno must bring his claim in a coll ateral proceeding. III We AFFIRM the district court’s order denying Carbajal-Moreno ’s motion for a new trial. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge