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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 21, 2003 Decided June 10, 2003

No. 02-3010

UNITED STATES OF AMERICA,

APPELLEE

v.

RASHEED RASHAD,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00159–01)

Michael S. Fried, appointed by the court, argued the cause

for appellant. With him on the briefs was Daniel H. Bromberg, appointed by the court.

Thomas S. Rees, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Roscoe C. Howard,

Jr., U.S. Attorney, John R. Fisher and Thomas J. Tourish,

Jr., Assistant U.S. Attorneys.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: GINSBURG, Chief Judge, and ROGERS and TATEL,

Circuit Judges.

Opinion for the court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Rasheed Rashad appeals his conviction on the ground that his lawyer’s advice to reject a plea

offer constituted ineffective assistance of counsel. Invoking

this court’s procedure for cases in which the defendant raises

on appeal a colorable and previously unexplored claim of

ineffective assistance, Rashad with the aid of new counsel

seeks an evidentiary hearing in the district court. The

Government argues that the limitation upon successive petitions for habeas corpus contained in the Anti–Terrorism and

Effective Death Penalty Act counsels against remanding this

case, and that further factual development of Rashad’s claim

would be futile. We disagree and hence send the case back

to the district court for further proceedings.

I. Background

Rashad was the target of a sting operation involving ‘‘controlled buys’’ by a government informant. On two occasions

in 2001 the informant arranged to purchase cocaine from

Rashad while under surveillance by the Bureau of Alcohol,

Tobacco, and Firearms. BATF agents recorded telephone

conversations in which Rashad set up the sales and they

equipped the informant with a hidden video camera and a

microphone to capture audio and video recordings of the

transactions. At the culmination of the second deal, agents

arrested Rashad and recovered the agreed-upon amount of

cocaine.

The grand jury returned a 10–count indictment and the

parties entered into plea negotiations. The record is silent as

to the details of the talks. We know only, from the prosecutor’s statement at sentencing, that ‘‘[t]he plea paperwork

[was] drawn up, and it appeared as though this case would be

resolved. [But] Mr. Rashad TTT had a change of heart.’’

Rashad’s allegation of ineffective assistance emerges from

the shadows of the plea bargaining. He claims his trial
3

counsel assured him that the evidence against him could not

support a conviction and that he faced a maximum sentence of

10 to 15 years in prison. Rashad says he rejected the

Government’s plea offer based upon that advice.

At trial the Government presented the testimony of the

informant and of several BATF agents, as well as the recordings of the transactions. The jury found Rashad guilty of two

counts of distributing more than 50 grams of cocaine, in

violation of 21 U.S.C. § 841, and of one count of distributing

cocaine base within 1,000 feet of a school, in violation of 21

U.S.C. § 860(a). The district court sentenced Rashad to 235

months in prison—almost 20 years—to be followed by 10

years of supervised release. With new counsel, Rashad appeals, claiming he was denied the effective assistance of

counsel guaranteed under the Sixth Amendment to the Constitution of the United States.

II. Analysis

In order to succeed on a claim of ineffective assistance of

counsel, a criminal defendant

must show two things: that his lawyer made errors ‘‘so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment,’’ and

that counsel’s deficient performance was prejudicial, i.e.,

that there is a ‘‘reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’’

United States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997)

(quoting Strickland v. Washington, 466 U.S. 668, 687, 694

(1984)). Due to the fact-intensive nature of the Strickland

inquiry and the likelihood, when a defendant asserts his sixth

amendment claim for the first time on direct appeal, that the

relevant facts will not be part of the trial record, see Massaro

v. United States, 123 S. Ct. 1690, 1694 (2003) (‘‘The evidence

introduced at trial TTT will be devoted to issues of guilt or

innocence, and the resulting record in many cases will not

disclose the facts necessary to decide either prong of the

Strickland analysis’’), this court’s ‘‘general practice is to
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remand the claim for an evidentiary hearing’’ unless ‘‘the trial

record alone conclusively shows’’ that the defendant either is

or is not entitled to relief. United States v. Fennell, 53 F.3d

1296, 1303–04 (D.C. Cir. 1995); cf. Massaro, 123 S. Ct. at

1696 (noting circumstances in which further factual development is unnecessary).

Rashad does not argue that he is entitled to relief upon the

basis of the existing record; he wants an opportunity to put

on evidence about the circumstances surrounding his plea

negotiations. The Government responds, first, that Rashad

should be required to pursue his claim in a petition for a writ

of habeas corpus. Alternatively, the Government maintains

that the present record conclusively establishes that Rashad

was not prejudiced by the alleged errors of counsel.

A.

The Anti–Terrorism and Effective Death Penalty Act of

1996 (AEDPA) limits a defendant’s ability to file successive

motions for habeas corpus relief as follows: ‘‘A second or

successive motion must be certified TTT by a panel of the

appropriate court of appeals to contain TTT newly discovered

evidence TTT or TTT a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme

Court.’’ 28 U.S.C. § 2255. The Government suggests that a

claim of ineffective assistance of counsel requiring factual

development is no different from a collateral attack upon a

conviction, and that to allow a defendant to litigate that type

of claim on remand from the court of appeals, rather than

requiring him to raise it in a § 2255 motion, permits the

defendant to avoid the limitations of the AEDPA.

Although we have not previously addressed this precise

argument, we have—in decisions post-dating the enactment of

the AEDPA—recognized that unlike some circuits we generally do not require a defendant to raise an ineffective assistance claim collaterally. See United States v. Todd, 287 F.3d

1160, 1164 (2002); United States v. Weaver, 281 F.3d 228,

233–34 (2002); United States v. Geraldo, 271 F.3d 1112, 1115–

16 (2001); but cf. United States v. Richardson, 167 F.3d 621,
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626 (D.C. Cir. 1999) (directing defendant to pursue habeas

petition because court could not resolve ineffective assistance

claim on existing record; no indication that defendant sought

or court considered remand).

The Government does not argue that we should abandon

our practice in deference to the AEDPA. Rather, the Government would have us limit the practice to cases in which

the ineffective assistance claim is not the sole issue on appeal;

that is, we should not remand a case in which the defendant

raised ‘‘no substantive issues about the conduct of the trial,’’

lest we give him the functional equivalent of a habeas petition

that would not count as his first bite at the apple under the

AEDPA.

We see no justification for thus treating single- and multiple-issue appeals differently. If remanding a case to permit a

defendant to litigate an ineffective assistance claim in the

district court sidesteps the limitations of § 2255, then it does

so regardless whether that claim was joined with other issues

in the direct appeal. The most to be said for the Government’s proposed approach is that it might reduce the opportunities for such ‘‘circumvention,’’ but even that proposition is

dubious. It is rare that appellate counsel, with a client

determined to appeal, cannot find some purported error about

which to complain; that is no doubt why in the past five years

this court has received only six motions pursuant to Anders v.

California, 386 U.S. 738, 744 (1967) (appointed counsel may

withdraw only upon determination that appeal would be

‘‘wholly frivolous’’). By the same token, we doubt that many

defendants would be unable to meet the Government’s multiple-issue requirement.

More fundamentally, we reject the Government’s premise

that our remand practice on direct appeal should be curtailed

in order to give effect to the statutory restriction upon a

defendant’s ability to launch a second collateral challenge to

his conviction. Our practice derives from the perceived unfairness of holding a defendant making a claim of ineffective

assistance—for which new counsel is obviously a necessity—

to the 7–day time limitation in Rule 33 of the Federal Rules
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of Civil Procedure for filing a motion for a new trial. See

Weaver, 281 F.3d at 234 (‘‘[T]rial counsel cannot be expected

to argue his own ineffectiveness in a motion for a new

trialTTTT [O]ur practice of remanding to the district court for

an evidentiary hearing has the effect of greatly extending [the

Rule 33] time limit’’). It would be inconsistent with the

underlying purpose of our practice—eliminating a technical

barrier to an ineffective assistance claim—to limit it to appeals raising multiple issues in order to shore up the procedural hurdle in § 2255. Indeed, the Second Circuit has cited

the new restriction on successive habeas petitions in § 2255

as a reason for not requiring a defendant to bring an ineffective assistance claim under § 2255. See United States v.

Leone, 215 F.3d 253, 256–57 (2000) (‘‘given the simplicity of

[the] ineffective assistance claim, we choose to exercise our

discretion to remand to the district court for further factfinding rather than to dismiss the appeal and force the

appellant to use up his only habeas petition’’). We conclude

that remand of a case raising ineffective assistance as the sole

issue is appropriate if the trial record does not conclusively

show whether the defendant is entitled to relief.

We would be remiss if we left this subject without mentioning the Supreme Court’s decision, handed down after oral

argument in this case, in Massaro, which raised the converse

of the issue in this case: Does the failure of new counsel to

raise the ineffective assistance claim on direct appeal bar the

defendant from asserting the claim collaterally? The Court

held that there is no bar, resting its decision in large measure

upon the same consideration that underlies our remand practice, namely, that the trial record can not normally be expected to contain the evidence necessary to resolve an ineffective

assistance claim upon direct appeal. Massaro, 123 S. Ct. at

1694. The Court had no occasion to address our practice of

remanding such a case, but our approach is entirely consistent with its opinion.

B.

The Government contends in the alternative that a remand

is unwarranted in this case because the record conclusively
7

establishes that Rashad is not entitled to relief. The Government does not dispute that Rashad has alleged errors by trial

counsel—understating both the strength of the Government’s

case and of Rashad’s sentencing exposure—sufficiently serious to meet the first part of the Strickland test. Rather, the

Government argues that Rashad has not shown a ‘‘ ‘reasonable probability’ that he would have entered a guilty plea had

his lawyer correctly advised him,’’ or that his plea would have

resulted in a more favorable sentence. Gaviria, 116 F.3d at

1512, 1513.

In the latter regard, the Government argues not only that

Rashad has failed to proffer any evidence that his acceptance

of the Government’s plea offer would have resulted in a more

favorable disposition for him, but also that as ‘‘the central

actor in a lengthy plea negotation,’’ he should be required to

produce such evidence. At this stage, however, Rashad need

not prove harm; the question is whether the record conclusively establishes that he could not do so if given the chance.

Nothing in the record allows us to conclude that Rashad’s

sentence would have been the same or longer if he had

accepted the Government’s plea offer. The purpose of remanding this case is to develop the record on precisely that

point; at this juncture, Rashad’s allegation that, but for his

counsel’s defective advice, he would have accepted and been

better off with the plea offer, is sufficient.

Somewhat more compelling is the Government’s contention

that Rashad could not reasonably have relied upon the allegedly erroneous advice he claims to have received from trial

counsel. In response to Rashad’s complaints that his counsel

mischaracterized the strength of the Government’s evidence

and understated the severity of the sentence that Rashad

would face upon conviction, the Government cites transcripts

of pretrial hearings indicating that Rashad knew (1) the

Government had videotape evidence of him in flagrante delicto and (2) he faced a possible life sentence upon conviction.

In light of this information, and Rashad’s extensive experience as a criminal defendant—he had pleaded guilty to seven

felonies in other cases—the Government argues that Rashad

‘‘cannot colorably contend that whatever counsel did or did
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not say TTT had any bearing on his knowing and voluntary

decision that he now regrets.’’

Rashad’s knowledge of the videotape would seem to make

it difficult indeed for him to show that he was misled by

counsel into believing the Government’s evidence against him

was weak. That Rashad understood his sentencing exposure,

however, is far from clear. The Government cites a statement made by the district court at a status conference during

a colloquy with the prosecutor about the need for a superseding indictment: ‘‘you certainly have plenty of transactions to

justify sending this guy away for life.’’ Assuming Rashad

was even aware of the statement, which was not addressed to

him, Rashad points out that the status conference occurred

well after he had rejected the plea offer and just days before

the trial. Therefore, we cannot say with the requisite certainty, based upon the record now before us, that Rashad was

aware of his sentencing exposure when he decided to go to

trial.

III. Conclusion

We hold that Rashad’s request for an evidentiary hearing

regarding his claim of ineffective assistance of counsel is

procedurally proper, and that the Government has not adduced record evidence conclusively demonstrating that Rashad will not be able to support his claim of prejudice. We

therefore remand the record to the district court for further

proceedings consistent with this opinion.

So ordered.