IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-40184

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JESUS SANTA MARIA-MARTINEZ,

a.k.a. CHUEY,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

June 10, 1998

Before KING, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jesus Santa Maria-Martinez appeals a guilty plea entered while

he was represented by an attorney who had been barred from

practicing before courts in the Fifth Circuit. Because the record

is no t sufficiently developed to evaluate a claim of ineffective

assistance of counsel, we affirm.

I.

Maria-Martinez and his brother sold drugs out of a trailer in2

Victoria, Texas. Using a confidential informant, the Victoria

Police Department purchas ed 2.96 grams of heroin from MariaMartinez in 1993. In 1995, another confidential informant

telephoned Maria-Martinez, who arranged for the caller to meet with

his brother in a drug store parking lot and purchase twelve grams

of heroin.

Maria-Martinez was arrested and charged with various narcotics

offenses in April 1996; attorney Carlos Alvarado was promptly

appointed to represent him and did so throughout the district court

proceedings, despite the fact that Fifth Circuit Chief Judge Politz

had issued an order barring Alvarad o from the practice of law in

Fifth Circuit courts for a period of at least six months, to end no

e arlier than June 1996. Alvarado could have reapplied for

permission to practice after the six-month period elapsed, but

never did so.

On May 8, 1996, a superseding indictment charged MariaMart inez with conspiracy to possess with intent to distribute a

controlled substance, along with four counts of aiding and abetting

in the knowing distribution of heroin. He pleaded not guilty on

May 17, but entered a guilty plea on two counts on September 23,

pursuant to a plea agreement.

The plea agreement incl uded a promise by the government to

dismiss three counts and to rec ommend a three-level sentence

reduc tion for acceptance of responsibility and a sentence at the

lower end of the sentencing guideline range. In return, Maria-3

Martinez promised his truthfu l testimony at rearraignment and

sentencing. The district court accepted these recommendations but

enhanced the sentence by two levels based on possession of a

dangerous weapon during a drug trafficking offense.

Alvarado filed a n otice of appeal for Maria-Martinez in

January 1997. In April 1997, the Fifth Circuit entered an order

noting that Alvarado had been barred from practice with in the

circuit and vacating his appointment in Maria-Martinez’s case. The

district court was ordered to obtain new counsel, and did so.

II.

Maria-Martinez asks that we reverse his conviction because he

received ineffective assistance of counsel. We do not typically

review claims of ineffective assistance on direct appeal, because

the record is rarely sufficiently developed on the issue of

counsel’s competence. See, e.g., United States v. Foy

, 28 F.3d

464, 476 (5th Cir. 1994). Although Maria-Martinez asserts several

ways in which his counsel allegedly erred, the record is not

complete without Alvarado’s testi mony as to any tactical

motivations behind his actions and as to how these errors

influenced the result.

For instance, Maria-Martinez claims Alvarado failed to move to

suppress evidence obtained by a search warrant allegedly containing

stale information. We have held that a claim of ineffective1 Cf. United States v. McKinney

, 53 F.3d 664, 675 (5th Cir. 1995) (defendant’s

attorney barred from practice in Texas, but had not been suspended by the Fifth

Circuit; noting that circuit rules did not require automatic suspension in federal

court when the predicate state bar license was revoked, and finding that the

attorney “was adequately credentialed at all times relevant to this case to practice

law in the Federal District Court for the Northern District of Texas

. . .,” and

finding no per se ineffectiveness).

4 assistance based on a failure to file a motion to suppress cannot

be reviewed without testimony as to the reasons behind failing to

file the motion. S ee United States v. Chavez-Valencia

, 116 F.3d

127, 133-34 (5th Cir.), cert. denied , 118 S. Ct. 325 (1997).

Maria-Marti n ez argues that such a record is unnecessary,

becau se his counsel had been suspended and was therefore

ineffective as a matter of law, even if he committed no error nor

caused prejudice to the defendant’s rights through his

incompetence. Maria-Martinez relies, for this argument, on cases

from other circuits holding th at an unlicensed attorney may, in

some cases, be found ineffective per se

. This court has never

applied a p er se ineffectiveness rule; accordingly, whether an d

when we may apply such a rule is res nova in this circuit. 1

A.

Some other circuits have applied a per se ineffectiveness rule

to improperly credentialed lawyers in two situations. The first

involves a lawyer who has not demonstrate d the specialized

knowledge that attorneys must possess. For instance, the District

of Columbia Circuit applied a per se test where the defendant was5

represented by an ex-convict posing as a lawyer, who had never

gone to law school. See Harrison v. United States , 387 F.2d 203,

212-14 (D.C. Cir. 1967). Similarly, the Second Circuit has applied

a per se rule where t he attorney had gone to law school but had

failed to pass any bar examination, after several attempts. S ee

Solina v. United States

, 709 F.2d 160, 169 (2d Cir. 1983). The

second class of cases involves lawyers who were involved in the

crime of which the defendant was accused, thus creating a conflict

of interest. See, e.g., United States v. Cancilla , 725 F.2d 867,

870 (2d Cir. 1984).

The first class of cases SS the one most relevant here SS is based

on two considerations. First, courts are concerned that a

def endant have a counselor who has legal training and has

demonstrated the specialized kn owledge and ability of a lawyer.

See, e.g., Uni ted States v. Mouzin , 785 F.2d 682, 697 (9th Cir.

1986).

Second , an undisclosed lack of credentials may create a

conflict of inter est. The inadequate credentials provide an

incentive for lackluster representation, the theory goes, because

the attorney will be concerned about drawing attention to himself

and encouraging an inquiry into his background. S ee, e.g., Solina

,

709 F.2d at 164 (citing Holloway v. Arkansas

, 435 U.S. 475, 489-90

(1978)). At least one of these concerns must be present before a

per se rule is appropriate. U nited States v. Aiello

, 900 F.2d 528,6

532 (2d Cir. 1990).

There is little question that Maria-Martinez had an attorney

who possessed the s pecialized knowledge necessary to represent a

client. Although he had been barred from practice in the Fifth

Circuit on the basis of hi s handling of an appeal for another

client, Alvarado was a member of the Texas bar throughout the

proceedings.

While Alvarado's suspension did not arise from a technical

failure to meet requirements, it also did not result from a

demonstrated lack of legal knowledge. Rather, he was suspended for

failing to file documents in connection with the appeal and to

apply for admission to the Fifth Circuit in order to litigate the

appeal.

Because this is a direct appeal rather than an appeal from the

denial of a 42 U.S.C. § 2255 motion, the record does not contain

any explanation for Alvarado's neglect of this matter, but numerous

explanations could be offered consistent with his conti nuing

ability to represent other clients. The record before us in no way

demonstrates an inability properly to represent a client to whom he

could devote sufficient time and attention, as he appears to have

done in this case.

Although the Second Circuit and several other circuits apply

a per se rule in some cases, t hey do not apply it to lawyers who

are properly credentialed in another court. In D erringer v. United2 See, e.g., Solina

, 709 F.2d at 167 (“We limit our decision

. . . to

situations where, unbeknown to the defendant, his representative was not authorized

to practice law in any state

. . . from failure to seek it or from its denial for

a reason going to legal ability

. . . .”); see also Bellamy v. Cogdell

, 974 F.2d

302, 306 (2d Cir. 1992) (en banc) (stating that the per se rule is limited to cases

in which counsel was “not duly licensed to practice law because of a failure ever

to meet the substantive requirements”).

3 Cf. Graves v. United States

, 1997 U.S. App. LEXIS 23194, at *9 (7th Cir.

1997) (unpublished) (suggesting application of a per se rule to an “attorney who

knew he was suspended for disciplinary reasons by the court in which the defendant

(continued...)

7 States , 441 F.2d 1140, 1141 (8th Cir. 1971), and United States v.

Bradford , 238 F.2d 395 (2d Cir. 1956), the courts did not apply a

per se rule where an attorney was properly admitted to a state bar

but had not applied for permission to practice in federal court.

Similarly, the Seventh Circuit did not apply a p er se rule t o an

attorney who was admitted to the bar in Iowa, failed the bar in

Indiana several times, then represented a defendant in Indiana.

See United States v. M erritt , 528 F.2d 650, 651 (7th Cir. 1976)

(per curiam).

These cases demonstrate that the key to adequate

representation is not technical license to prac tice in the

jurisdiction involved, but a credential from s ome forum

demonstrating the specializ ed knowledge of a lawyer. Courts

applying a per se rule appear to do so only where the attorney was

never properly licensed to practice. 2 No published case of which

we are aware has applied a per se rule merely because the attorney

was not properly credentialed in the jurisdiction in which the case

arose. 3(...continued)

was being prosecuted”; remanding for findings on prejudice and instructing district

court to reach question whether per se rule could be applied only if he found no

prejudice).

8 I f Alvarado possessed sufficient skill to represent MariaMartinez, the argument for a pro se ineffect iveness rule depends

solely upon the conflict of interest created by Alvarado’s

unauthorized representation in a court of the Fifth Circuit. The

present situation lies somewhere between the typical per se case,

in which the attorney is subject to criminal sanctions for

practicing law without a license, and the typical factualdetermination case, in which the attorney is only suspended from a

predicate state bar, is suspended for a technical violation, or

does not know he is suspended.

The most closely analogous case is Bellamy , in which the

Second Circuit declined to apply a per se standard. See Bellamy

,

874 F.2d at 303 . In that case, the attorney, Guran, postponed a

disciplinary hearing with a statement by his doctor that he was

ill, had trouble concentrating, and would be incapacitated for some

time. I d. at 303-04. Based on this statement, the hearing was

postponed . The disciplinary committee attempted to have Guran

suspended from the practice of law on the basis of his illness, but

Guran begged them to refrain from taking this step. He complained

of the stigma attached to suspension, pointed out that he had been

retired, aside from Bellamy’s case, for some time, and asked to9

retain his license so that he could second-chair Bellamy’s case.

He stated that he would have a competent attorney try the case, but

needed to assist because of his longstanding relationship with the

defendant and his mother, who had already paid Guran’s fee. I d. at

304.

Presumably on the basis of these representations, the

disciplinary committee took no action on Guran’s proposed

suspension, allowing him to continue his representation of Bellamy.

Id

. Guran did not in fact employ the services of co-counsel,

however, and tried the case himself. The majority opinion accepts

at face value Guran’s claim that his co-counsel was unexpectedly

unavailable at trial, but the dissent points out that he barely

mentioned the trial to his proposed co-counsel, did not make use of

co-counsel, and lacked funds with which to pay co-counsel. I d

. at

310. Had the committee learned that he was trying the case

himself, Guran almost certainly would have been suspended; in

fact, he was suspended two weeks after the trial was completed.

Nevertheless, the majority refused to apply the p er se rule

for ineffectiveness, pointing out that Bellamy was properly

licensed throughout the trial. Yet, Guran’s fear of exposure was

at least as significant as Alvarado’s. Both had to worry about the

possible future suspension of their l icenses (or in Alvarado’s

case, the denial of his reapplication to practice in the circuit),

but were unlikely to face criminal prosecution if they were caught.4 See also United States v. Novak

, 903 F.2d 883, 890 (2d Cir. 1990) (attorney

obtained waiver of requirement by misrepresenting veteran status); Vance v. Lehman

,

64 F.3d 119 (3d Cir. 1995), cert. denied

, 516 U.S. 1059 (1996) (attorney failed to

dis close serious ethics investigation in California to licensing board of

Pennsylvania).

10 In contrast, the representatives in Solina and H arrison were

breaking the law by providing l egal representation without a

license.

Of course, it is possible that individuals in Guran’s or

Alvarado’s situation would, for instance, aim to avoid trial in

order to minimize exposure of their unauthorized practice in a

circuit in which they were suspended or not authorized to conduct

trials on their own. The conflict is much less severe, however,

than that of an attorney who is connected with the crime or who has

never been licensed to practice law in any jurisdiction. In many

cases, as in this one, the lawy er’s status will not affect the

outcome of the criminal proceeding. Furthermore, as B ellamy

demonstrates, having a license does not preclude such a conflict. 4

B.

We decline to employ the arbitrary distinctions created by the

per se ineffectiveness test, because we are not convinced that the

per se rule would lead to the right result in almost all cases or

necessarily would conserve judicial resources. A p er se rule

should be applied only where it “will achieve the correct result in

almost all cases.” C oleman v. Thompson

, 501 U.S. 722, 737 (1991).5 O f course, the C oleman requirement would not apply if, as the Solina

court believed, effective assistance of counsel were a prerequisite to the trial

court’s jurisdiction. S ee Solina

, 709 F.2d at 168 (“Application of a per se rule

appears to us to be required by

. . . Johnso n v. Zerbst . . . .”); J ohnson v.

Zerbst , 458 U.S. 458, 467 (1937) (“If the accused, however, is not represented

by counsel . . . the Sixth Amendment stands as a jurisdictional bar to a valid

conviction and sentence

. . . .”). After S trickland v. Washington

, 466 U.S. 668

(1984), however, the jurisdictional requirement no longer applies, and the per

se rule must be justified on prudential grounds. S ee Washington

, 466 U.S. at 668

(requiring defendant t o prove prejudice as well as that “counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment”).

The Washington Court, id. at 692, state d that prejudice can be presumed only

where counsel actively represents conflicting interests, and that even then the

presumption does not equate with a per se rule.

6 See, e.g., Solina , 709 F.2d at 169 (attorney graduated from law school

but failed the bar); United States v. Novak , 903 F.2d 883, 890 (2d Cir. 1990)

(attorney obtain ed license fraudulently, but appeared to have practiced

successfully for 15-20 years).

11 Coleman

, decided after Harrison, Solina

, and much of their progeny,

suggests that a per se rule is inappropriate in many cases covered,

or arguably covered, by it. 5

Several of the cases in which courts have ap plied a p er se

rule have involved counsel with considerable practical experience

to compensate for their failure to pass the bar. 6 Attorneys in

such circumstances probably would not provide ineffective

assistance in “almost all” cases. Even attorneys suffering from a

conflict of interest probably would not provide ineffective

assistance in almost all cases, particularly where, as here, a

genuinely attractiv e plea bargain was available. Thus, C oleman

counsels rejecting the per se rule.

In addition, the per se rule requires courts to draw difficult

lines in order to determine which cases merit application of the

rule. The S olin a court would not apply a per se rule to a12

technical disbarment, such as for failure to pay dues, but would

apply it to attorneys disbarred for more substantive reasons. S ee

Blanton

, 896 F. Supp. at 1462. Yet, attorneys are suspended,

disbarred , or unlicensed for numerous reasons, reflecting a wide

range of qualities of performance. Where, as here, the licensing

defect does not obviou s ly demonstrate incompetence, the wrong

result may be reached, so a court may be hesitant to apply the rule

at all.

C.

Because we conclude that pru dential considerations do not

justify applying a rule of per se ineffectiveness to cases of

representation by improperly uncredentialed lawyers, MariaMartinez’s allegations of ineffective assistance must be evaluated

on the merits under the Washington standard. As is our practice in

direct appeals alleging ineffectiveness assistance of counsel, we

AFFIRM the judgment, but without prejudice to a subsequent motion

under 28 U.S.C. § 2255. We express no view on the merits of such

a motion.