United States Court of Appeals

For the First Circuit

No. 21-1842

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID STAVELEY, a/k/a Kurt D. Sanborn, a/k/a David Sanborn, 

a/k/a Kurt Sanborn, a/k/a David Adler Staveley,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary S. McElroy, U.S. District Judge]

Before

Thompson, Selya, and Gelpí,

Circuit Judges.

Kara Hoopis Manosh for appellant.

Lauren S. Zurier, Assistant United States Attorney, with whom 

Zachary A. Cunha, United States Attorney, was on brief, for 

appellee.

August 2, 2022
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SELYA, Circuit Judge. In United States v. Teeter, 257 

F.3d 14 (1st Cir. 2001), and its progeny, this court has upheld 

the general validity of appeal waivers in criminal cases. See id.

at 23; see also United States v. O'farrill-López, 991 F.3d 45, 48 

(1st Cir. 2021); United States v. Almonte-Nuñez, 771 F.3d 84, 88 

(1st Cir. 2014); United States v. Nguyen, 618 F.3d 72, 74 (1st 

Cir. 2010). Those decisions paint the backdrop for this appeal, 

in which defendant-appellant David Staveley asks us to override an 

appeal waiver and allow him to proceed with an appeal based on 

what he alleges to be the ineffective assistance of his counsel 

below. This entreaty runs headlong into the well-established Mala

rule, which instructs that a "fact-specific claim[] of ineffective 

assistance [of counsel] cannot make [its] debut on direct review" 

when the record is insufficiently "developed to allow reasoned 

consideration of the claim." United States v. Mala, 7 F.3d 1058, 

1063 (1st Cir. 1993). 

In our view, the Mala rule must prevail. Thus, we hold 

that ineffective assistance of counsel claims, not raised in the 

district court and not within an exception to Mala, are inadequate

to overcome an appeal waiver. Consequently, we dismiss the appeal. 

I

We briefly rehearse the background and travel of the 

case. Because this appeal follows a guilty plea, we take the facts 

from the change-of-plea colloquy, the unchallenged portions of the 
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presentence investigation report (PSI Report), and the transcript 

of the disposition hearing. See United States v. Lessard, 35 F.4th 

37, 40 (1st Cir. 2022).

When the COVID-19 pandemic ravaged the nation, Congress 

created emergency financial assistance programs to ameliorate the 

economic consequences wrought by the crisis. See Coronavirus Aid, 

Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 

281 (2020). One of these programs — the Paycheck Protection 

Program (PPP) — provided small businesses with funds necessary to 

meet their employees' salaries and other operating expenses. See

id. § 1102, 134 Stat. at 286-94. 

In April of 2020, the defendant — along with a 

co-conspirator — submitted several false and fraudulent loan 

applications seeking PPP funds. Those applications were

ostensibly made on behalf of various entities, claiming that the

entities had several employees and large payrolls. In reality, 

those entities — at the time the applications were made — either 

had no employees at all or paid out no wages in the relevant time

frame. 

After these machinations came to light, the defendant 

was charged by criminal complaint in the District of Rhode Island. 

The affidavit accompanying the complaint alleged in substance that 

the defendant had committed bank fraud, see 18 U.S.C. § 1344, had 

conspired to commit bank fraud, see id. §§ 1344, 1349, and had 
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perpetrated other federal crimes, see 15 U.S.C. § 645(a) & 18 

U.S.C. § 371 (conspiracy to make false statements to influence the 

Small Business Administration); 18 U.S.C. § 1028A (aggravated 

identity theft). While awaiting trial, the defendant was released 

on personal recognizance and was later required to stay in home 

confinement. 

In disregard of the conditions of his release, the 

defendant fled from the state. To avoid apprehension, he staged

a fake suicide and — while on the lam — used false identities and 

stolen license plates. Those events led to an additional federal 

charge for failing to appear in court. See id. § 3146(a)(1).

Approximately one year later, the defendant — who by 

then had been charged by a grand jury — agreed to plead guilty to 

conspiracy to commit bank fraud, see id. §§ 1344, 1349, and to 

failure to appear in court, see id. § 3146(a)(1). His plea 

agreement contained a waiver-of-appeal provision, which stated 

that the defendant agreed to forgo his right to appeal the 

convictions and sentences imposed so long as the sentences imposed 

were within or below the guideline sentencing range (as determined 

by the sentencing court). At the change-of-plea hearing, the 

district court specifically addressed the waiver-of-appeal

provision and confirmed that the defendant understood its 

significance. 
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The district court convened the disposition hearing on 

October 7, 2021. At that hearing, the sentencing court determined

the defendant's total offense level and criminal history category. 

Based on those determinations, the court found that the defendant's 

guideline range suggested an aggregate sentence between fifty-one

and sixty-three months of incarceration.

The government argued for consecutive sentences 

aggregating a within-Guidelines sentence of fifty-six months. 

During the course of its argument, the government disputed the 

defendant's claim that his post-traumatic stress disorder (PTSD) 

stemmed from an alleged sexual assault while he had been in federal 

custody for an earlier offense. It noted that the PSI Report 

sketched an unclear picture of the factual basis for those 

allegations. 

Defense counsel rejoined that the appropriate sentences 

would be time served with supervised release. He argued — among 

other things — that the defendant's sentences should be mitigated 

because the defendant had been diagnosed with PTSD. Although 

acknowledging that the government had called into question the 

underlying cause of that PTSD, he countered that he had provided 

the district court with medical records substantiating the PTSD 

diagnosis. 

When mulling the sentencing factors, the district court 

commented that "[t]he fact that serving time in prison for [the 
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defendant] is more difficult because of the PTSD and the things 

that [the defendant had] been through . . . is something that is 

awful." Nevertheless, the court concluded that it was "also a 

risk that [the defendant] knew [he] w[as] taking at the time that 

[he] w[as] engaging in th[e] behavior." The court then imposed a

sentence of forty-four months for the conspiracy charge and a 

sentence of twelve months for the failure-to-appear charge, to be 

served consecutively. That aggregate sentence added up to a 

within-Guidelines sentence. Finally, the court — pursuant to the 

plea agreement — dismissed the other charges against the defendant. 

Shortly after the disposition hearing, the defendant 

sought and received court-appointed counsel pursuant to the 

Criminal Justice Act. See id. § 3006A. The defendant's new 

counsel then brought this timely appeal.

II

The defendant asserts — for the first time on appeal —

that his guilty plea (and, thus, his convictions and his aggregate 

sentence) should be vacated because his then-counsel afforded him 

ineffective assistance in derogation of his Sixth Amendment rights 

both at the time he entered his plea and at sentencing. See U.S. 

Const. amend. VI; see also Strickland v. Washington, 466 U.S. 668, 

687-88 (1984); Hill v. Lockhart, 474 U.S. 52, 58 (1985) (applying 

Strickland to claims of ineffective assistance in guilty-plea 

context). As we explain below, this assertion blinks reality.
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Although "[t]he Sixth Amendment guarantees criminal 

defendants the right to effective assistance of counsel," there is 

no guarantee that a defendant can assert a violation of that right 

for the first time on direct appeal of a conviction or sentence. 

United States v. Chambers, 710 F.3d 23, 31 (1st Cir. 2013)

(alteration in original) (quoting Scarpa v. Dubois, 38 F.3d 1, 8 

(1st Cir. 1994)). That admonition is doubly relevant where, as 

here, a valid waiver-of-appeal provision may operate to preclude 

the defendant's claims. Our inquiry begins with the threshold 

issue: whether the waiver-of-appeal provision in the defendant's 

plea agreement requires dismissal of the defendant's appeal. 

A

We begin with first principles. In Teeter, we held that

a presentence waiver of appellate rights in a criminal case is 

presumptively enforceable when it is made knowingly and 

voluntarily. See Teeter, 257 F.3d at 25. At the same time, we 

rejected the notion that such waivers are invalid simply because 

they are made before a defendant has any real "clue as to the 

nature and magnitude of the sentencing errors" that may occur. 

Id. at 21. Recognizing the "obvious dangers attendant to the 

practice," though, we held that such waivers must "meet stringent 

criteria" to ensure that they have been entered into knowingly and 

voluntarily. Id. at 23. 
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We also held that "limits must be set on the effect that 

can be given to [such waivers]." Id. at 24. Although a knowing 

and voluntary waiver of appellate rights is presumptively 

enforceable, "no appeal waiver serves as an absolute bar to all 

appellate claims." Garza v. Idaho, 139 S. Ct. 738, 744 (2019). 

For instance, a waiver does not apply unless a "claim of error 

falls within the scope of the waiver." O'farrill-López, 991 F.3d 

at 48 (citing Teeter, 257 F.3d at 24); see Almonte-Nuñez, 771 F.3d 

at 88. And because presentence appeal waivers are "made before 

any manifestation of sentencing error emerges, appellate courts 

must remain free to grant relief from them in egregious cases." 

Teeter, 257 F.3d at 25. "[I]f denying a right of appeal would 

work a miscarriage of justice, the appellate court, in its sound 

discretion, may refuse to honor the waiver." Id.

With this foundation in place, we turn to the case at 

hand. As an initial matter, the defendant appears to concede that 

his appeal falls within the literal scope of the waiver-of-appeal 

provision. He nonetheless argues, in broad strokes, that the 

waiver of appeal is nugatory because he did not enter into his

guilty plea knowingly and voluntarily. As a fallback, he submits 

that enforcement of the waiver would result in a miscarriage of 

justice. 

The common thread that runs through the defendant's 

arguments is his allegation of ineffective assistance of counsel. 
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The attorney who represented him below was — he says — asleep at 

the wheel. But that allegation is not properly before us based on 

our well-established Mala rule and, therefore, does not denature 

the operation of the defendant's waiver.

To reach this conclusion, our starting point is whether 

the waiver appears presumptively enforceable. Answering that 

query will dictate how we evaluate the defendant's asseverational 

array. 

B

Under Teeter, we determine whether a presentence waiver 

of appellate rights was entered into knowingly and voluntarily by 

looking to the "text of the plea agreement and the content of the 

change-of-plea colloquy" — the "critically important" sources for 

a "determination of knowledge and volition." Teeter, 257 F.3d at 

24; see Nguyen, 618 F.3d at 74. The waiver's scope must be clear 

and definite. See Teeter, 257 F.3d at 24; Nguyen, 618 F.3d at 74. 

The district court also must "question the defendant specifically 

about [his] understanding of the waiver provision and adequately 

inform [him] of its ramifications." Teeter, 257 F.3d at 24; see

Nguyen, 618 F.3d at 74. "If this appraisal shows that the waiver 

was made knowingly and voluntarily," it is "presumptively 

enforceable." Nguyen, 618 F.3d at 74.

Here, the plea agreement and the transcript of the 

change-of-plea colloquy make manifest that the defendant's waiver 
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of appellate rights is presumptively valid. The plea agreement 

"contains a clear statement elucidating the waiver and delineating 

its scope." Teeter, 257 F.3d at 24. Indeed, the defendant does 

not argue to the contrary. 

The change-of-plea colloquy reflects that the district

court's questioning anent the waiver was unimpugnable. The 

adequacy of such an inquiry "depends on the specifics of the case, 

including questions asked or statements made by the judge, 

characteristics of the defendant, and evidence that the defendant 

understood that he was waiving his right to appeal." United States

v. Morillo, 910 F.3d 1, 3 (1st Cir. 2018).

The court below twice inquired whether the defendant 

understood that — by entering into the plea agreement — he would 

be relinquishing the right to appeal the sentences to be imposed. 

Though the district court did not refer specifically to his waived 

right to appeal the convictions, it confirmed generally that 

counsel had read and discussed the plea agreement with the 

defendant and that the defendant understood the agreement's terms. 

That line of questioning — in the circumstances of this case — was

satisfactory to "confirm the defendant's understanding of the 

waiver and [his] acquiescence in the relinquishment of rights that 

it betokens." Teeter, 257 F.3d at 24 n.7; see United States v. 

Rodriguez-Monserrate, 22 F.4th 35, 43 (1st Cir. 2021). 
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In an effort to blunt the force of this reasoning, the 

defendant suggests that the court failed to comply with Federal 

Rule of Criminal Procedure 11(b)(1)(N). That rule requires that 

when a defendant seeks to waive his right to appeal a sentence 

while pleading guilty, the district court "must inform the 

defendant of, and determine that the defendant 

understands, . . . the terms of any plea-agreement provision 

waiving the right to appeal or to collaterally attack the 

sentence." Fed. R. Crim. P. 11(b)(1)(N). 

We have held that when a defendant challenges the 

enforceability of an appeal waiver based on an unpreserved claim 

of a Rule 11(b)(1)(N) violation, review is only for plain error. 

See Rodriguez-Monserrate, 22 F.4th at 42; Morillo, 910 F.3d at 3. 

And in this instance, the record is devoid of any semblance of a 

Rule 11(b)(1)(N) error, plain or otherwise. 

The alleged Rule 11(b)(1)(N) error is based on the 

brevity of the court's questioning. The defendant insists that 

the court should have asked more than once about his waiver. More 

thorough inquiry was required, the defendant argues, because he 

was not adequately prepared by counsel and was unaware that he was 

giving up the right to direct appeal of any ineffective assistance 

claim. 

The defendant's arguments are groundless. When the goal 

is to achieve a clear understanding, brevity can be a plus rather 
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than a minus. Here, moreover, the district court's inquiry was 

thorough, and the key question was twice repeated. And, finally, 

the change-of-plea hearing was not the defendant's first rodeo —

he had previously pleaded guilty to federal fraud violations on 

two unrelated occasions. 

We add that nothing contained in the defendant's

briefing suggests that the "waiver deserved enhanced scrutiny." 

Morillo, 910 F.3d at 3. The defendant does not, for example, claim 

that he was an inexperienced youth, that he did not understand the 

English language, or that the district court's statements were 

contradictory. Instead, the defendant's arguments hint that the 

court should have remediated the supposed ineffectiveness of his 

own counsel or drilled down to lay bare what kinds of claims would 

be barred by his waiver. No circumstances in the record suggest

the necessity for such granular detail. The district court was 

entitled to rely on the defendant's representations that he was 

satisfied with his counsel's handiwork, that he had reviewed the 

terms of the plea agreement with his counsel, and that he

understood all of those terms. See Nguyen, 618 F.3d at 75. 

The short of it is that the court's questioning was 

adequate and certainly clearer than questioning that we have 

approved in other cases. See, e.g., United States v. De-La-Cruz 

Castro, 299 F.3d 5, 12 (1st Cir. 2002) (upholding waiver

notwithstanding district court's somewhat confusing qualification 
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that defendant could appeal "in some circumstances" (quotations 

omitted)). No more was exigible.

C

This brings us to the defendant's principal reasons as 

to why the waiver-of-appeal provision should not be enforced. 

Those reasons are premised on his claims of ineffective assistance

of counsel concerning both his guilty plea and his aggregate 

sentence. 

But "[w]e 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." 

Mala, 7 F.3d at 1063; see United States v. Padilla-Galarza, 990 

F.3d 60, 93 (1st Cir. 2021); United States v. Tkhilaishvili, 926 

F.3d 1, 20 (1st Cir. 2019); United States v. Santana-Dones, 920 

F.3d 70, 82 (1st Cir. 2019). This so-called Mala rule is a 

"prudential precept" based on practical realities. PadillaGalarza, 990 F.3d at 93; see Mala, 7 F.3d at 1063. Defendants 

bringing ineffective-assistance claims "must show, first, that 

counsel's performance was constitutionally deficient and, second, 

that the deficient performance prejudiced the defense." Mala, 7 

F.3d at 1063 (citing Strickland, 466 U.S. at 687). Those showings 

"typically require the resolution of factual issues that cannot 

efficaciously be addressed in the first instance by an appellate 

tribunal." Id. After all, it is the trial court that "has a 
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superior vantage from which to 'assess both the quality of the 

legal representation afforded to the defendant in the district 

court and the impact of any shortfall in that representation.'" 

Padilla-Galarza, 990 F.3d at 93-94 (quoting Mala, 7 F.3d at 1063). 

To be sure, not all ineffective-assistance claims come 

within the reach of the Mala rule. We may consider such claims,

first brought on direct appeal, in those rare instances when "the 

critical facts are not genuinely in dispute and the record is 

sufficiently developed to allow reasoned consideration." United 

States v. Miller, 911 F.3d 638, 642 (1st Cir. 2018) (quoting United 

States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991)).

The defendant in this case seeks to avail himself of 

this so-called Natanel exception. But this exception "is narrow, 

and its applicability depends on the particular circumstances of 

a given case." Padilla-Galarza, 990 F.3d at 94. Contrary to the 

defendant's importunings, his claims do not fit within the isthmian

confines of the Natanel exception. We explain briefly. 

1

The defendant asserts — in spite of copious evidence 

that he fully understood his plea agreement and was satisfied with 

his representation — that he received ineffective assistance of 

counsel in advance of the change-of-plea hearing, rendering his 

guilty plea unknowing and involuntary. He avers that — through

fault of his counsel — he was unable to access the discovery 
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materials while in pretrial custody before the hearing and was 

generally unaware of the evidence supporting the prosecution. 

Because he was not apprised of the evidence before agreeing to 

plead guilty, his thesis runs, he could not have entered into the 

waiver of appeal knowingly and voluntarily. 

This claim is fact-specific and, thus, within the 

heartland of the Mala rule. Consequently, it would be improvident 

to address the defendant's one-sided version of the facts on direct 

appeal.

The defendant acknowledges as much by conceding that the 

record does not illuminate any issues regarding access to discovery 

materials. Though he submits extra-record documents on appeal 

purporting to show that he could not access the evidence while in 

custody, those submissions are insufficient to ground his claim. 

Crucially, the record is tenebrous as to whether 

counsel's performance was constitutionally deficient. The 

defendant admitted the government's factual proffer under oath. 

What is more, he declared that he was satisfied with his attorney's 

representation. To square these admissions against his nascent

claim that he was not seasonably provided with the evidence raises 

factual questions not only as to the truth of the defendant's 

claims but also as to whether counsel furnished him with other 

information, guidance, or advice sufficient to remediate any 

alleged inability to review the evidence in his case ahead of his 
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plea. Given the limitations of the record on appeal, there is no 

principled way that we can answer those questions with "only [the 

defendant's] word as to what occurred." United States v. TorresRosario, 447 F.3d 61, 65 (1st Cir. 2006). 

We think it follows that we cannot review these 

allegations of ineffective assistance in a manner sufficient to 

assess the enforceability of the defendant's waiver. See United 

States v. Chandler, 534 F.3d 45, 51 (1st Cir. 2008); see also

United States v. Edgar, 348 F.3d 867, 869 (10th Cir. 2003) 

(declining to address ineffective-assistance claim related to 

enforceability of waiver despite well-established rule that court 

"will not enforce a waiver that is the product of ineffective 

assistance of counsel"). Simply put, the connective tissue 

necessary to make out the defendant's ineffective assistance of 

counsel claim concerning his plea lies well outside the record on 

appeal. That means, of course, that we cannot proceed to find the

waiver of appeal unenforceable on this ground.

2

The defendant's fallback position is that the 

waiver-of-appeal provision should not be enforced by reason of the 

miscarriage of justice exception to the appeal-waiver framework.

See Teeter, 257 F.3d at 25. He complains that counsel should have 

taken further measures to substantiate his claim that he was 

assaulted while in federal custody to mitigate his sentence. In 
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the defendant's view, enforcing the waiver to preclude this claim 

would amount to a miscarriage of justice because the alleged error 

is of constitutional dimension and occurred after he entered his 

plea.

Once again, these allegations of ineffective assistance 

are prematurely before us on direct review. They therefore afford 

no foothold for refusing to enforce the waiver. On this record, 

addressing the defendant's allegations of ineffective assistance 

at sentencing would require us to "play[] blindman's buff." Mala, 

7 F.3d at 1063.

For one thing, the record is not transparent on the 

critical facts as to counsel's performance — the first element of 

the Strickland test. The record reflects that defense counsel 

made the district court aware of the PTSD diagnosis stemming from 

the alleged assault. That counsel did not further substantiate 

the assault allegations may well have been an informed choice. 

There is little in the record to explain "why counsel acted as he 

did." Torres-Rosario, 447 F.3d at 64 (emphasis in original). That 

sort of "information [is] rarely developed in the existing 

[appellate] record." Id. And absent such information, "it is 

virtually impossible to assess what reasoning, if any, guided 

counsel's actions." Tkhilaishvili, 926 F.3d at 20; see Massaro v. 

United States, 538 U.S. 500, 505 (2003) (explaining that "appellate 

court[s] may have no way of knowing whether a seemingly unusual or 
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misguided action by counsel had a sound strategic motive or was 

taken because the counsel's alternatives were even worse").

For another thing, we are confident that the district 

court would be in a better position to assess the second element

of the Strickland test: whether the defendant has shown "that 

there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have 

been different." Strickland, 466 U.S. at 694. At the disposition 

hearing, the district court acknowledged the defendant's PTSD "and 

the things that [the defendant had] been through," which strongly 

indicates that the court gave at least some credit to the 

defendant's allegations of assault. In these circumstances, it 

would be imprudent for us to guess whether additional 

substantiation regarding the assault would or would not have 

altered the court's decisionmaking calculus. Cf. United States v. 

Ladd, 885 F.2d 954, 961 (1st Cir. 1989) ("[R]obes and gavels are 

the tools of a jurist's trade — not tea leaves or crystal balls."). 

We are especially reluctant to step into the district judge's shoes

when — as in this case — the arguments at issue were designed to 

influence her discretionary weighing of the sentencing factors. 

It would be both more efficient and more desirable for the district 

judge, in the first instance, to say whether a different balance 

would have been struck. 
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Because the defendant's allegations of ineffective 

assistance at sentencing cannot meaningfully be reviewed on the 

existing record, they cannot underpin a miscarriage-of-justice

claim sufficient to upset an appellate waiver. We have said before

— and today reiterate — that it would be absurd to conclude that 

the enforcement of a waiver would work a miscarriage of justice 

when "we would decline to hear [the defendant's] claims on direct 

appeal." United States v. Torres-Estrada, 817 F.3d 376, 379 (1st 

Cir. 2016). If the simple fact that a defendant can muster claims 

that might ordinarily be cognizable on appeal was enough to nullify 

a valid waiver-of-appeal provision, then waiver-of-appeal 

provisions would be little more than empty vessels. See United 

States v. Edelen, 539 F.3d 83, 87 (1st Cir. 2008).

"Triggering the miscarriage of justice exception 

requires, at a bare minimum, an increment of error more glaring 

than routine reversible error." Nguyen, 618 F.3d at 75. Thus, a 

defendant will rarely, if ever, carry his burden of showing a 

miscarriage of justice based on an ineffective assistance of 

counsel claim falling within the Mala rule.

This makes perfect sense: whether the miscarriage-ofjustice exception applies is a fact-specific inquiry, involving a 

multitude of considerations, such as "the clarity of the error, 

its gravity, its character . . . , the impact of the error on the 

defendant, the impact of correcting the error on the government, 
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and the extent to which the defendant acquiesced in the result." 

Teeter, 257 F.3d at 26. In the end, the exception requires "an 

error of significant or constitutional dimension [that] is clear." 

United States v. Del Valle-Cruz, 785 F.3d 48, 56 (1st Cir. 2015) 

(emphasis added).

Absent some footing in the record, we cannot determine 

whether enforcing the waiver would result in a miscarriage of 

justice. After all, the clarity of an alleged error — or its lack 

of clarity — is revealed only by measuring the appellant's argument 

against the record. See United States v. Santiago, 769 F.3d 1, 10

(1st Cir. 2014) (identifying "error" as "clear" based on review of 

sentencing transcript and written judgment); United States v. 

Rivera-López, 736 F.3d 633, 636 (1st Cir. 2013) (declining to 

"speculate" regarding information "not before us on th[e] appeal" 

in addressing claim of error). And without adequate indicia in 

the record concerning the impact of an alleged error, there is no 

reliable way for us to tell whether and to what extent an 

appellant's claim of unfairness is woven entirely out of strands 

of speculation and surmise. See O'farrill-López, 991 F.3d at 50 

(rejecting miscarriage-of-justice argument because "impact of the 

challenged action . . . [wa]s wholly conjectural"). 

Where, as here, the claimed error is a fact-specific 

claim of ineffective assistance of counsel raised for the first 

time on appeal and falling within the Mala rule, the requisite 
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degree of clarity will almost always be lacking. See United States

v. Torres-Oliveras, 583 F.3d 37, 42-43 (1st Cir. 2009) (rejecting 

reliance on miscarriage-of-justice exception based on ineffective 

assistance of counsel where record inhibited assessment of whether 

attorney's action was erroneous or "strategic" and whether the 

"sentence would have been different"). The upshot, then, is that 

when an ineffective assistance of counsel claim cannot be 

adequately adjudicated based on the existing record, reliance on 

that claim to show a miscarriage of justice will be fruitless.

To say more would be to paint the lily. Ineffective 

assistance of counsel claims — not raised in the district court 

and not within an exception to Mala — cannot overcome an otherwise 

enforceable appeal waiver. So it is here: we conclude that the 

defendant's allegations that he received ineffective assistance of 

counsel fall within the Mala rule and, thus, cannot surmount his 

waiver of appeal. 

D

There is one loose end. Enforcement of a waiver-ofappeal provision ordinarily requires dismissal of the appeal. When 

an appellant asserts that counsel's ineffective assistance 

invalidates his plea agreement, though, the claim usually may be 

addressed notwithstanding a waiver-of-appeal provision in the plea 

agreement. Rudimentary logic teaches that a waiver of appeal will 

typically fall by the wayside when an appellant "challenges the 
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validity of the plea itself." United States v. Ramos-Mejía, 721 

F.3d 12, 14 (1st Cir. 2013) (citing Chambers, 710 F.3d at 27); cf.

Teeter, 257 F.3d at 25 n.9 (suggesting that circumstances in which 

"plea proceedings were tainted by ineffective assistance of 

counsel" could warrant setting aside waiver based on miscarriageof-justice exception). If a plea agreement is invalid, then its 

components — including any waiver-of-appeal provision — are 

necessarily void as well. See Ramos-Mejía, 721 F.3d at 14.

Here, however, a different outcome is required because 

the ineffective-assistance claim that targets the plea is brought 

for the first time on appeal and falls squarely within the Mala

rule. When an ineffective-assistance claim is raised for the first 

time on direct appeal and does not trigger any exception to the 

Mala rule, we have two options: we may either dismiss the appeal

without prejudice, thus allowing the defendant to bring his claim

in a collateral proceeding, see, e.g., Padilla-Galarza, 990 F.3d 

at 94; or — under "special circumstances" — we may remand the claim

to the district court for an evidentiary hearing, United States v. 

Vega Molina, 407 F.3d 511, 531 (1st Cir. 2005). Because no special 

circumstances are apparent here, dismissal of both claims is the 

appropriate remedy. The defendant may seek to address his "newly 

minted ineffective assistance of counsel claim[s]" through "a 

collateral proceeding brought in the district court under 28 U.S.C. 

§ 2255." Padilla-Galarza, 990 F.3d at 94. At that time, the 
- 23 -

district court also can address the defendant's piggybacked claim 

that the ineffective assistance of his counsel regarding the 

discovery materials undermined his guilty plea.

III

We need go no further. Waivers of appeal are important 

tools in the plea-bargaining process. This case, however, is less 

about waivers of appeal and more about the Mala rule: a "factspecific claim[] of ineffective assistance [of counsel] cannot 

make [its] debut on direct review" when the record is 

insufficiently "developed to allow reasoned consideration of the 

claim." Mala, 7 F.3d at 1063. For the reasons elucidated above, 

we dismiss the appeal; without prejudice, however, to the right of 

the defendant, should he so elect, to prosecute his ineffective 

assistance of counsel claims in a collateral proceeding under 28 

U.S.C. § 2255. 

Dismissed without prejudice.