United States of America, Plaintiff-appellee, v. Antonio Valenzuela-jasso, Defendant-appellant, 972 F.2d 1347 (9th Cir. 1992)

MEMORANDUM^** 

Valenzuela attacks his conviction on two grounds: he says a biased juror entitles him to a new trial and he insists his trial counsel was ineffective.

We reject his juror-bias claim for the reasons given in the district court's order of July 25, 1991.

Ineffective assistance claims are ordinarily resolved on collateral rather than direct review. See, e.g., United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985). Most ineffectiveness claims cannot succeed without fact development outside the original record. United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943 (1984). In an exceptional case, in which counsel's performance is obviously constitutionally deficient, the issue may be resolved on direct appeal. Because this is not such an exceptional case, we do not resolve the ineffectiveness issue here.

Valenzuela points to several tactical decisions as obviously deficient. Counsel waived an opening statement, did not cross-examine several witnesses, failed to challenge the admissibility of some evidence and made concessions during closing argument. In context, each of these decisions may have been nothing more than valid tactical choices. Specifically, the concessions during closing could have been part of a strategy to focus the jury's attention on the weakest link in the government's case, the "in relation to" element of the firearm count. See United States v. Swanson, 943 F.2d 1070, 1076 (9th Cir. 1991).

Our review of the record persuades us that this claim should be resolved on collateral rather than direct review.

AFFIRMED.