People of the Territory of Guam, Plaintiff-appellee, v. Mark Bamba Angoco, Defendant-appellant, 131 F.3d 147 (9th Cir. 1997)

MEMORANDUM^* 

Appellant, Mark Bamba Angoco, appeals his conviction of aggravated felony murder, in violation of 9 G.C.A. §§ 16.30(a) (2), 16.30(b), and 4.60, and hindering apprehension or prosecution, in violation of 9 G.C.A. § 55.15(a) (3). On appeal, Angoco raises a single issue: he contends that he was denied effective assistance of counsel on intermediate appeal. More specifically, he argues that on intermediate appeal to the District Court of Guam, his counsel failed to raise the issue that the trial court erred by not providing a jury instruction of negligent homicide as a lesser included offense of aggravated felony murder. The state argues, inter alia, that Angoco's counsel may have had a tactical reason for not raising the issue of the lesser included offense instruction.

Without expressing any view as to the merits of Angoco's ineffective assistance of counsel claim, we note that such claims are more appropriately addressed on collateral review which "permit [s] the defendant to develop a record of what counsel did, why it was done, and what if any prejudice resulted." United States v. Daly, 974 F.2d 1215, 1218 (9th Cir. 1992); see also, United States v. Houtchens, 926 F.2d 824 (9th Cir. 1991). Although such claims ordinarily relate to counsel's performance at trial, we believe that collateral review is also appropriate for the claim asserted here. Given the government's argument that the appellate counsel may have made a tactical decision, an evidentiary hearing would be appropriate. Accordingly, we decline to decide the merits of the ineffective assistance claim here.

We AFFIRM the decision of the District Court of Guam without prejudice to any ineffective assistance of counsel claim that Angoco may later bring on collateral review.