Not for publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-2347

UNITED STATES OF AMERICA,

Appellee,

v.

HARRY J. BURDICK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, Senior U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin and Stahl, Senior Circuit Judges.

Warren M. Yanoff, with whom Yanoff & Valletta was on brief,

for appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Margaret E. Curran, United States Attorney, and Gerard B.

Sullivan, Assistant United States Attorney, were on brief, for the

United States.

November 13, 2003
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Per Curiam. On December 18, 2000, a federal grand jury

in the District of Rhode Island returned an indictment charging,

inter alios, defendant-appellant Harry J. Burdick with conspiracy

to commit carjacking and carjacking with death resulting. See 18

U.S.C. §§ 371, 2119, 2119(3). In due course, Burdick pled guilty

to both counts pursuant to a plea agreement that pretermitted the

possibility of a death sentence.

The district court convened the disposition hearing on

October 8, 2002. The court set Burdick's base offense level at 43.

With a three-level reduction for acceptance of responsibility, USSG

§3E1.1, the offense level dipped to 40. Given his 14 criminal

history points, the court placed him in criminal history category

VI. These determinations yielded a guideline sentencing range of

360 months to life imprisonment. Burdick neither contested these

calculations nor sought a downward departure. The government,

however, asked the court to depart upward (the presentence

investigation report noted five possible bases for an upward

departure).

During his allocution, Burdick stated: "I want to say

that I feel that I deserve life imprisonment. I don't belong on

the streets." He then told the court that: "I deserve the maximum

sentence which is life in prison." Burdick's counsel adopted the

same stance, recommending the imposition of a life sentence. The

court denied the government's motion for an upward departure but
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nonetheless granted Burdick's request for a life sentence (the

highest sentence available within the applicable guideline range).

The court concluded: "If I had the power to impose the death

sentence, I would."

We need not tarry. On appeal, Burdick is represented by

a new attorney. He does not challenge any of the district court's

guideline computations; instead, he claims that he received

ineffective assistance of counsel at sentencing. According to

Burdick, this substandard performance consisted of (i) his original

lawyer's failure to develop evidence concerning his mental status,

and (ii) her willingness to recommend life imprisonment (the

sentence that Burdick himself implored the court to impose).

This fact-specific claim has never been presented to the

lower court. Consequently, it is premature. In United States v.

Mala, 7 F.3d 1058 (1st Cir. 1993), we wrote:

We 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, but,

rather, must originally be presented to, and

acted upon by, the trial court.

Id. at 1063. We explained the reason for the rule:

Since claims of ineffective assistance involve

a binary analysis — the defendant must show,

first, that counsel's performance was

constitutionally deficient and, second, that

the deficient performance prejudiced the

defense — such claims typically require the

resolution of factual issues that cannot

efficaciously be addressed in the first

instance by an appellate tribunal.
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Id. (citations omitted). We then described the usual praxis for

litigating such claims:

When faced with similar situations in

comparable cases, we have routinely dismissed

the relevant portion of the appeal without

prejudice to the defendant's right to litigate

his ineffective assistance claim through the

medium of an application for post-conviction

relief.

Id.

Although we have made an occasional exception in cases in

which the record is fully developed on all aspects of the

ineffective assistance claim, see, e.g., United States v. Natanel,

938 F.3d 302, 309 (1st Cir. 1991), the Mala rule has for the most

part been followed assiduously. See, e.g., United States v.

Martinez-Vargas, 321 F.3d 245, 251 (1st Cir. 2003); United States

v. Genao, 281 F.3d 305, 313 (1st Cir.), cert. denied, 123 S. Ct.

216 (2002); United States v. Hoyle, 237 F.3d 1, 8 (1st Cir.), cert.

denied, 122 S. Ct. 343 (2001); United States v. Ademaj, 170 F.3d

58, 64 (1st Cir. 1999). Indeed, the Supreme Court recently placed

its imprimatur on this approach. See Massaro v. United States, 123

S. Ct. 1690, 1692-96 (2003).

We follow the Mala rule here. The narrow exception to it

is plainly inapposite because there has been no development of a

number of material facts. On the present record, it is impossible

to gauge what investigation defense counsel undertook, what further

investigation (if any) might have been appropriate, what benefit
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such further investigation might have yielded, or what interactions

between Burdick and his attorney might have influenced the

sentencing recommendation.

We need go no further. We affirm the judgment below,

without prejudice, however, to appellant's right to raise his claim

of ineffective assistance of counsel in a post-conviction relief

proceeding brought pursuant to 28 U.S.C. § 2255. We intimate no

view as to the outcome of any such proceeding.

It is so ordered.