[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]



# Un ited S tates Co urt o f Ap pea ls

For the First Circuit

____________________ No. 01-1938 UNITED STATES, Appellee,

v. RIGOBERTO VALDÉS, A/K/A "RIGO," Defendant, Appellant.

____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge ]

____________________

Before Torruella, Lynch and Lipez, Circuit Judges .

____________________ 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.

____________________ June 19, 2002

____________________-2- Per curiam . In 1995, Rigoberto Valdés was con victed 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 be caus e the district court found that Valdés's secondtrial 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 ple a negotiations, provided constitutionally defective legal representation. See Stricklandv. Washington , 466 U.S. 668 (1984).

Valdés cla i ms 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 bas ed on his first counsel's performance. This pro se motion to amend was brought nineteen months after the initial petition . T he 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 fi rst 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." Basedon this colloquy and the magistrate judge's report, it is not clear whether the district court ever den iedValdés's motion to amendhis § 2255 petition to include the ineffective as sistance 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). Bo th par ties urge that we nonetheless consider the ineffective assistance claimbecause, 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 resolvedby 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. Benhamv. 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 th at is not the correct procedural mechanism for an ineffecti v e 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. Bas edon the colloquy between the district judge and Vald és' 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 ins uffici ently developed for us to consider the merits of the ineffective assistance claim on direct appeal, we remandthe 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.