[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

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No. 01-1938

UNITED STATES, 

Appellee,

v.

RIGOBERTO VALDÉS, A/K/A "RIGO,"

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

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Before

Torruella, Lynch and Lipez, Circuit Judges.

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Elizabeth A. Howe on brief for appellant.

Thomas F. Klumper, Assistant United States Attorney, Guillermo

Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant

United States Attorney, on brief for appellee.

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June 19, 2002

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-2-

Per curiam. In 1995, Rigoberto Valdés was convicted

after a guilty plea of a drug crime. By petition under 28 U.S.C.

§ 2255 (2000), brought on August 4, 1999, Valdés had his right to

appeal reinstated because the district court found that Valdés's

second trial counsel failed to file a timely appeal despite

Valdés's instructions to do so. Valdés now takes that appeal and

uses it to argue that his first trial counsel, who represented him

during the early stages of plea negotiations, provided

constitutionally defective legal representation. See Strickland v.

Washington, 466 U.S. 668 (1984).

Valdés claims that his first trial counsel was

ineffective because that counsel did not tell him of an earlier,

more beneficial offer of a shorter sentence that the government

allegedly made during the plea bargaining. Valdés says he became

aware of this earlier plea offer on the day he accepted the less

favorable plea, April 4, 1995. The first time he raised this as a

legal issue was almost six years later, at the March 2001

evidentiary hearing on his pro se § 2255 petition, when he made a

pro se motion to amend his § 2255 petition to add the ineffective

assistance claim based on his first counsel's performance. This

pro se motion to amend was brought nineteen months after the

initial petition. The magistrate judge outlined the factual

allegations of Valdés's new claim in his report and recommendation,

but said that "[t]he matter was not considered" in his report.

Instead, he recommended that Valdés be resentenced to reinstate his

right to direct appeal.
-3-

At resentencing, Valdés's counsel submitted a motion

presenting grounds for a lesser sentence, including the allegation

that Valdés's first counsel had not communicated the initial

government offer. At the hearing, counsel attempted to raise the

issue, but was cut short by the district judge, who stated "that

is an issue for appeal, if you think. I think the Magistrate

touched on it a little bit but that would be an issue on appeal."

Based on this colloquy and the magistrate judge's report, it is not

clear whether the district court ever denied Valdés's motion to

amend his § 2255 petition to include the ineffective assistance

claim, or whether it merely deferred disposition of the motion.

We typically require that an ineffective assistance claim

be presented first to the district court in a collateral

proceeding, not on direct appeal, so that the pertinent facts may

be developed and found by the district court. United States v.

Ramirez-Benitez, No. 00-1497, 2002 WL 1079361, *7 (1st Cir. June 4,

2002). Both parties urge that we nonetheless consider the

ineffective assistance claim because, in their view, the facts are

simple. The parties are wrong because, whether the facts are

simple or complex, they are disputed, and that dispute needs to be

resolved by the district court in a collateral proceeding, if at

all. The government, for its part, has quite improperly submitted

an affidavit, which was never presented to the trial court,

directly to this court. This court, as the government should know,

is not the initial trier of fact, particularly when the facts are

disputed. Benham v. Lenox Sav. Bank, No. 01-2101, 2002 WL 1080718,
-4-

*2 (1st Cir. June 4, 2002). Valdés has also asked us to remand the

direct appeal to the district court for further fact-finding, but

that is not the correct procedural mechanism for an ineffective

assistance claim that was not raised in his initial petition.

We dismiss the direct appeal as premature on the merits

of the ineffective assistance claim, subject to one limitation.

Based on the colloquy between the district judge and Valdés's

attorney at the sentencing hearing, we construe Valdés's appeal to

include an appeal of the district court's denial or deferral of his

motion to amend the § 2255 petition. Because the factual record is

insufficiently developed for us to consider the merits of the

ineffective assistance claim on direct appeal, we remand the case

for a determination on whether to allow Valdés's motion to amend

his § 2255 claim. Cf. Rodriguez v. United States, 286 F.3d 972,

980-81 (7th Cir. 2002) (motion to amend habeas petition is untimely

unless it is filed within one year statute of limitations, or

relates back to the original filing). If the district court allows

the motion to amend, it should determine the merits of Valdés's

ineffective assistance claim under § 2255. That merits order would

be subject to appeal, as would be an order denying the motion to

amend.

So ordered.