Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 919 F.2d 146 (9th Cir. 1990)

No. 90-30028.

United States Court of Appeals, Ninth Circuit.

Before TANG, O'SCANNLAIN and LEAVY, District Judges.


On this direct appeal from a conviction, appellant asserts, as the only issue presented, that he received ineffective assistance of counsel while facing federal prosecution on narcotics charges.

* In May 1989, Laurence Meyer was arrested in Portland, Oregon, after he and another returned from a journey to California with five newly purchased kilograms of cocaine. Meyer confessed his involvement in the purchase of the narcotics and in past drug sales to the arresting officers. In a one-count indictment, Meyer was charged with possession of 500 or more grams of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a) (1).

Diana Stewart, an attorney with the Federal Public Defender's office, was appointed to represent Meyer. After Meyer entered a plea of not guilty at his arraignment on May 24, 1989, Stewart filed motions for discovery, to suppress statements and evidence, and to reserve the right to file additional motions. Stewart also entered into plea-bargaining negotiations with the prosecutor assigned to the case, which resulted in the submission of a "draft plea agreement" to counsel by the United States Attorney's office on May 30, 1989. Stewart prepared a response letter to the agreement, in which she requested certain modifications, on June 21, 1989.1 

Also on June 21, private attorney John A. Wetteland, Jr., was substituted in as Meyer's counsel of record. Stewart forwarded all relevant documents from the case to Wetteland, and also sent him a letter outlining the steps which had been taken and Stewart's recommendations for further handling of the case. Among her comments, Stewart suggested that Wetteland obtain an audiotape of Meyer's detention hearing and various records which could be obtained through follow-up on her motions and through new discovery requests.

Wetteland did not file a single pleading following his substitution into the record. He did not request any tapes, transcripts, reports or other records, he did not follow up on Stewart's motions, nor did he request any evidentiary hearings.2 

On August 10, 1989, defendant entered a plea of guilty to the indictment. His petition to enter the guilty plea was attached to the executed plea agreement, which remained unchanged from the government's original May 30 proposal and reflected none of Stewart's concerns as indicated in her June 21 letter.

A presentence report was prepared and submitted to Wetteland on October 5, 1989. The report included statements which Meyer had denied making in the motion to suppress filed by Stewart. Wetteland did not file an objection to the report or prepare a sentencing letter on Meyer's behalf.

Prior to sentencing, some of Meyer's friends and family submitted letters to Wetteland which were to be presented to the sentencing judge for his consideration. None of those letters was immediately passed on. On October 9, eleven of Meyer's supporters were sufficiently suspicious of Wetteland's diligence to write District Judge James Burns directly, informing the judge of Wetteland's failure to communicate with them, to pass on their letters, and to discuss Meyer's plea with him prior to the hearing.3 

On October 23, 1989, Meyer appeared for sentencing. Judge Burns informed counsel of the October 9 letter, at which point Wetteland requested a continuance. A two-day continuance was granted, during which Wetteland forwarded the letters supporting Meyer to the court.

Meyer was sentenced at a hearing held October 25, 1989. The parties first discussed the government's recommendation that Meyer be treated as a "minimal participant" under the sentencing guidelines, despite the presentence recommendation that he be classified a "minor participant"; the former status would have meant an additional two-point deduction on the sentencing guideline grid over the latter.4  Ultimately, the court followed the probation office's recommendations in setting Meyer's base offense level at thirty, with two-point reductions for "minor participant" status and for acceptance of responsibility. Meyer was sentenced to eighty-eight months in prison and an additional four years' supervised release. Meyer currently resides in the federal correctional facility in Sheridan, Oregon.

The court's order of judgment was filed November 14, 1989. Meyer timely appealed the judgment. We have jurisdiction under 28 U.S.C. § 1291.


Meyer claims that he was deprived of his sixth amendment right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). He asserts generally that Wetteland's passive pursuit of Meyer's defense was outside the range of competence demanded of criminal attorneys, see McMann v. Richardson, 397 U.S. 759, 771 (1970), and that there is a reasonable probability that but for Wetteland's failures Meyer would not have pled guilty, see Hill v. Lockhart, 474 U.S. 52, 59 (1985). See United States v. Bigman, 906 F.2d 392, 394 (9th Cir. 1990). In particular, Meyer complains of Wetteland's failure to conduct discovery or otherwise follow up on his predecessor's efforts, to object to any portion of the proposed plea agreement or the presentencing report, to proffer a sentencing letter on Meyer's behalf, to forward letters of support to the sentencing judge absent the judge's prompting, and to argue zealously for classification of Meyer as a "minimal participant" for the purposes of sentencing.

The usual vehicle for questioning the effectiveness of counsel is a collateral attack on the conviction pursuant to 28 U.S.C. § 2255. United States v. Johnson, 820 F.2d 1065, 1074 (9th Cir. 1987); United States v. Rogers, 769 F.2d 1418, 1424-25 (9th Cir. 1985). This court is chary of analyzing ineffectiveness of counsel claims on direct appeal. United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (per curiam), cert. denied, 470 U.S. 1058 (1985)); see also United States v. Pope, 841 F.2d 954, 958 (9th Cir. 1988) (citing Schaflander) . "Challenge by way of a habeas corpus proceeding is preferable as it permits the defendant to develop a record as to what counsel did, why it was done, and what, if any, prejudice resulted." Id.; United States v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989) (quoting Pope), modified, 902 F.2d 18, cert. denied, 59 U.S.L.W. 3244 (U.S. Oct. 1, 1990); see also United States v. Schmit, 881 F.2d 608, 614 (9th Cir. 1989) ("Such issues must be raised in a collateral proceeding in which a record can be developed.") (citing Johnson, 820 F.2d at 1073-74).

"The record before us illustrates precisely why ineffective assistance claims cannot generally be evaluated on direct appeal." Wagner, 834 F.2d at 1483; see also Rewald, 889 F.2d at 859 (quoting Wagner) . We cannot state assuredly that Meyer's legal representation was "so inadequate as obviously to deny him his sixth amendment right to counsel." Wagner, 834 F.2d at 1482; see also Rewald, 889 F.2d at 859 (quoting Wagner) . The Supreme Court has observed that a counsel's failure to conduct discovery may render his assistance constitutionally deficient. See Kimmelman v. Morrison, 477 U.S. 365, 385-86 (1986). But see Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (counsel's failure to investigate may not be deficient in face of government's overwhelming case). Even if we could on this record adjudge Wetteland's performance to have been deficient, however, we cannot conclude as a matter of law that Meyer was prejudiced. See United States v. Cortes, 895 F.2d 1245, 1248 (9th Cir.) (counsel's failure to conduct discovery did not prejudice defendant), cert. denied, 110 S. Ct. 2191 (1990); cf. United States v. Smith, 893 F.2d 1573, 1580 (9th Cir. 1990) (mere allegation that more investigation was needed is not sufficient to establish error).

For the reasons stated above, we cannot sustain Meyer's claim of ineffective assistance of counsel on the record before us.5  To conclude that Wetteland's assistance was effective, or at least not prejudicial, would be to dispose prematurely of a claim going directly to Meyer's fundamental right to a fair trial. To conclude that Meyer was denied a fair trial without exploring the reasons for Wetteland's conduct and their impact on the proceeding would be to risk expending further judicial resources needlessly.6 


Obviously, we make no prediction as to the likely outcome of an ineffective assistance of counsel claim presented by Meyer in the context of a collateral attack under 28 U.S.C. § 2255.7  The proceedings surrounding a petition for habeas corpus would presumably produce a substantially more complete record against which to measure the performance of Meyer's counsel.

On the record presented by this direct appeal, we affirm the conviction.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3


This letter evidently was never sent


On July 6, 1989, Meyer was erroneously released from custody. When the error was discovered, Meyer turned himself in. Wetteland did not request a new detention hearing despite his client's display of reliability


They also reported that Wetteland told Meyer that "he had to plead guilty [sic] and then plea bargain as this way he would only get five years otherwise he would get 20 years."


Under the terms of the plea agreement, the government was obliged to argue for this classification


The wisdom of our policy of declining to declare ineffective assistance of counsel on the thin record usually available on direct appeal is further demonstrated by the standard of review we apply to such claims. Generally, we review ineffective assistance of counsel claims de novo. Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir. 1985). The de novo standard of review is appropriate where the issue before this court is purely one of applying the law to established facts. See United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). Without sufficient facts in the record to evaluate an attorney's performance, our ability to engage in a de novo review is hampered considerably


We continue to heed the warning of the California Supreme Court:

Otherwise, appellate courts would become engaged 'in the perilous process of second-guessing.' [Citation omitted.] Reversals would be ordered unnecessarily in cases where there were, in fact, good reasons for the aspect of counsel's representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record.

People v. Pope, 23 Cal. 3d 412, 426, 590 P.2d 859, 867, 152 Cal. Rptr. 732, 740 (1979), quoted in United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943, cert. denied, 469 U.S. 863 (1984).


Our holding that ineffective assistance of counsel has not been demonstrated in this appeal does not preclude Meyer from raising the same issue in a petition for writ of habeas corpus. See Jack v. United States, 435 F.2d 317, 319 (9th Cir. 1970) (per curiam) (legal claims resolved on appeal not necessarily barred in section 2255 proceedings), cert. denied, 402 U.S. 933 (1971). Our previous cases have made clear that ineffective assistance of counsel claims rejected on direct appeal may be presented again in a collateral action. See, e.g., Rewald, 889 F.2d at 859; United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988) (per curiam)