UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

RAYMOND DEAN BROWN, 

 Defendant-Appellant. 

No. 13-8055 

(D.C. Nos. 1:08-CV-00097-SWS & 

2:00-CR-00059-NDF-1) 

(D. Wyo.)

 

ORDER AND JUDGMENT*

 

Before HARTZ, McKAY, and McHUGH, Circuit Judges. 

 

 Raymond Dean Brown appeals the district court’s denial of his motion for 

relief under 28 U.S.C. § 2255 based on claims of ineffective assistance of counsel. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse and remand. 

 I. Background 

 Mr. Brown was convicted after a jury trial of being a felon in possession of a 

firearm, unlawfully possessing a machine gun, and carrying a machine gun during 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 8, 2016

Elisabeth A. Shumaker 

Clerk of Court

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and in relation to a drug trafficking crime. He was ultimately sentenced to 30 months 

on the first two counts and 360 months for the third count, to be served 

consecutively. 

 Mr. Brown subsequently sought relief from his convictions and sentences by 

filing a § 2255 motion. The district court denied that motion and it also denied 

Mr. Brown’s request for a certificate of appealability (COA). Mr. Brown then filed a 

COA application in this court. We granted a COA on three issues, appointed counsel 

for Mr. Brown, and ordered supplemental briefing. 

 All three of the claims for ineffective assistance of counsel at issue on appeal 

relate to information Mr. Brown provided to state authorities that he alleges led to his 

federal charges and convictions for firearm violations. As we explained in our COA 

order: 

 Prior to being charged with federal crimes, Mr. Brown was 

charged with violations of state drug and firearms laws. While his state 

charges were pending, Mr. Brown met with state authorities and 

provided information about his criminal activities to receive 

consideration in his plea negotiations [(“the proffer meeting”)]. The 

state authorities informed Mr. Brown at the meeting that any 

information he provided would not be used against him in state court, 

but that the state could not bind federal authorities. Dennis Claman, one 

of the state agents present at the meeting, later repeated inculpatory 

statements made by Mr. Brown at the meeting to federal agents. 

Mr. Brown subsequently entered a plea of no contest in Wyoming state 

court to charges of possession of a controlled substance and operation of 

an unlawful clandestine laboratory. 

 The week following his state proceedings, a federal grand jury 

returned an indictment charging Mr. Brown with three firearms 

offenses. Before trial, Mr. Brown moved to suppress the statements he 

made at the meeting with the state authorities, arguing that the use of 

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those statements would violate his Wyoming immunity agreement. The 

district court reserved ruling on the motion. Mr. Brown did not renew 

his suppression motion at trial and the government presented his 

statements through the testimony of Agent Claman without any defense 

objection. In our decision in Brown I, we reviewed the suppression 

issue for plain error and concluded that the district court did not err in 

admitting the statements[.] 

United States v. Brown, No. 13-8055, at 3-4 (10th Cir. Jan. 14, 2015) (unpublished 

COA order). 

 On appeal, Mr. Brown argues that his trial counsel was ineffective for failing 

to object to the admission of evidence from the proffer meeting, which he asserts 

should have been excluded under Rule 410 of the Federal Rules of Evidence.1

 He 

also argues that trial counsel was ineffective for failing to investigate his immunity 

agreement with the state and for failing to raise that as a basis for precluding the 

 

1

 Rule 410 provides as follows: 

(a) Prohibited Uses. In a civil or criminal case, evidence of the 

following is not admissible against the defendant who made the plea or 

participated in the plea discussions: 

(1) a guilty plea that was later withdrawn; 

(2) a nolo contendere plea; 

(3) a statement made during a proceeding on either of those pleas under 

Federal Rule of Criminal Procedure 11 or a comparable state procedure; 

or 

(4) a statement made during plea discussions with an attorney for the 

prosecuting authority if the discussions did not result in a guilty plea or 

they resulted in a later-withdrawn guilty plea. 

Fed. R. Evid. 410. 

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admission of evidence in his federal trial regarding statements he made during the 

proffer meeting. Finally, he contends that his state counsel provided ineffective 

assistance during the proffer meeting by not protecting him from making selfincriminating statements that subsequently led to him being charged and convicted of 

federal crimes. 

 II. Discussion 

 “We review the district court’s legal rulings on a § 2255 motion 

de novo and its findings of fact for clear error. A claim for ineffective assistance of 

counsel presents a mixed question of fact and law, which we review de novo.” 

United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006) (citations omitted). 

 A) Trial Counsel’s Failure to Make a Rule 410 Objection

 In ground two of his § 2255 motion, Mr. Brown argued that his trial counsel 

was ineffective for failing to object to the admission of testimony about statements he 

made during the proffer meeting.2

 The government argued below that the failure to 

make a Rule 410 objection did not constitute ineffective assistance of counsel 

because any such objection would have been futile as Rule 410 would not apply to 

 

2

 In his § 2255 motion, Mr. Brown alleged that admitting his statements from the 

proffer meeting violated Rule 11 of the Wyoming Rules of Criminal Procedure. That 

rule is substantially similar to Rule 410 of the Federal Rules of Evidence. Both the 

government and the district court construed his argument as also alleging that 

admitting his statements violated Rule 410, as that is the rule that applies to trials in 

federal court. See R., Vol. I at 846-47, 847 n.4; id. at 1589-91, 1590 n.3. 

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Mr. Brown because he had ultimately pled guilty to the state charges. In denying 

Mr. Brown’s claim, the district court adopted the government’s reasoning. 

 The government now concedes on appeal that Mr. Brown did not in fact plead 

guilty to the state charges, but instead entered a no contest plea, and therefore the 

district court’s ruling is incorrect. The government goes on, however, to provide an 

alternative argument for denying Mr. Brown’s claim of ineffective assistance of 

counsel. But the problem is that this alternative argument was never presented to the 

district court. 

 Although we have discretion to affirm on any ground adequately supported by 

the record, the exercise of that discretion is guided by three considerations: (1) was 

the alternate ground “fully briefed and argued here and below”; (2) did the parties 

have “a fair opportunity to develop the factual record”; and (3) “whether, in light of 

factual findings to which we defer or uncontested facts, our decision would involve 

only questions of law.” Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004) 

(brackets omitted). 

 The argument the government is now making was not briefed or argued below 

and Mr. Brown did not have a chance to respond to it below. As noted above, claims 

for ineffective assistance of counsel present mixed questions of law and fact, Orange, 

447 F.3d at 796, and the government’s new argument raises factual issues about 

defense counsel’s trial strategy. The parties have not had a chance to develop a 

factual record on those issues. 

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 Under these circumstances, the best course is to reverse the district court’s 

disposition of this claim and to remand for further proceedings. See Evers v. Regents 

of Univ. of Colo., 509 F.3d 1304, 1310 (10th Cir. 2007) (remanding to the district 

court and explaining that instead of “examining and resolving the merits of [the 

defendant’s alternate] contentions, . . . [the court would] adopt the better practice of 

leaving the matter to the district court in the first instance”). 

 B) Trial Counsel’s Failure to Investigate and Litigate the Immunity Agreement

 In ground twelve of his § 2255 motion, Mr. Brown argued that his trial counsel 

provided ineffective assistance by failing to investigate his immunity agreement with 

the state and by failing to raise that as a basis for not admitting evidence of 

statements he made during the proffer meeting during his trial (which led to the issue 

being reviewed on appeal for plain error). The government argued that this issue was 

raised and resolved on direct appeal and therefore it could not be raised again in a 

§ 2255 motion. In denying this claim, the district court adopted the government’s 

reasoning. 

 Courts typically do not review § 2255 claims if they have been raised and 

resolved on direct appeal. See Abernathy v. Wandes, 713 F.3d 538, 549-50 (10th Cir. 

2013) (“[U]nder the law-of-the case doctrine, courts ordinarily . . . refuse to 

reconsider arguments presented in a § 2255 motion that were raised and adjudicated 

on direct appeal.”). Although Mr. Brown did raise on appeal an issue regarding the 

admissibility of certain statements and whether their admission violated his immunity 

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agreement, he did not raise this claim for ineffective assistance of counsel. See 

United States v. Brown, 400 F.3d 1242, 1255-56 (10th Cir. 2005). It would have 

been unusual for Mr. Brown to do so—and we would likely have declined to consider 

such a claim if he did—because we do not generally consider claims for ineffective 

assistance of counsel on direct review. See United States v. Galloway, 56 F.3d 1239, 

1242 (10th Cir. 1995) (explaining that only “rare claims [of ineffective assistance of 

counsel,] which are fully developed in the record” may be brought on direct appeal). 

Instead, the proper course is to raise those claims in a collateral proceeding, as 

Mr. Brown did here. See id. (“The rule in this circuit . . . is that claims of 

constitutionally ineffective counsel should be brought on collateral review, in the 

first petition filed under 28 U.S.C. § 2255.”). 

 On appeal, the government no longer argues that this claim should be denied 

because it was raised in Mr. Brown’s direct appeal. Instead, the government argues 

the claim should be denied on the merits. Because Mr. Brown’s claim for ineffective 

assistance of counsel was not raised and resolved on direct appeal, the district court 

erred in denying it on that basis. As the court never reached the merits of this claim 

due to its procedural dismissal, the claim should be remanded for the district court to 

consider the merits in the first instance. Remand is especially appropriate here 

because ineffective-assistance-of-counsel claims are fact intensive and the district 

court is “the forum best suited to developing the facts necessary to determining the 

adequacy of representation,” Massaro v. United States, 538 U.S. 500, 505 (2003). 

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 C) State Counsel’s Failure to Protect Mr. Brown at the Proffer Meeting 

 In the supplement to ground twelve in his § 2255 motion, Mr. Brown argued 

that his state counsel provided ineffective assistance during the proffer meeting by 

not protecting him from making self-incriminating statements that subsequently led 

to him being charged and convicted of federal crimes. This issue was properly raised 

in Mr. Brown’s § 2255 motion, but the government did not address this claim in its 

response to the motion and the district court likewise did not discuss this claim in its 

decision.3

 The district court therefore erred in failing to address the merits of this 

claim. 

 The government argues on appeal that this claim should be denied on the 

merits. But again, as with the other two claims for ineffective assistance of counsel, 

it is not appropriate for us to resolve this claim on the merits in the first instance. We 

therefore remand this claim to the district court for further consideration. 

 III. Conclusion 

 We reverse and vacate that portion of the district court’s decision denying 

Mr. Brown’s claims for ineffective assistance of counsel addressed in this appeal 

(grounds two, twelve, and the supplement to ground twelve). We remand for further 

proceedings consistent with this order and judgment. On remand, the district court 

 

3

 Although Mr. Brown refers to this claim as a “supplement” to ground twelve, it was 

filed as part of his initial § 2255 motion and is appended to the end of his section on 

grounds twelve, thirteen, and fourteen. See R., Vol. I at 539-51 (grounds twelve, 

thirteen, and fourteen); id. at 552-55 (supplement to grounds twelve, thirteen, and 

fourteen). 

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should consider appointing counsel for Mr. Brown, providing both parties an 

opportunity to file supplemental briefs, and holding an evidentiary hearing if 

necessary. 

 We also grant Mr. Brown’s unopposed motion for leave to file his 

supplemental reply brief out of time. 

 Entered for the Court 

 Carolyn B. McHugh 

 Circuit Judge 

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