Beaulieu v. U.S., 90-6357

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Citation: 930 F.2d 805
• Docket Number: No. 90-6357,90-6357
• Parties: Ronald Duane BEAULIEU, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Decision Date: 15 April 1991

Page 805

930 F.2d 805 Ronald Duane BEAULIEU, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee. No. 90-6357. United States Court of Appeals,
Tenth Circuit. April 15, 1991.

Page 806

Ronald Duane Beaulieu, pro se.

Timothy D. Leonard, U.S. Atty., and Robert G. McCampbell, Asst. U.S. Atty., Oklahoma City, Okl., for respondent-appellee.

Before ANDERSON, TACHA, and BRORBY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Ronald Beaulieu appeals a district court order dismissing his motion, pursuant to 28 U.S.C. Sec. 2255, to vacate his sentence. We vacate the dismissal and remand for further proceedings. ¹

Beaulieu was convicted of conspiracy to manufacture amphetamine, in violation of 21 U.S.C. Sec. 846, and possession of amphetamine oil with intent to manufacture amphetamine, in violation of 21 U.S.C. Sec. 841(a)(1). On direct appeal, Beaulieu, with different counsel, challenged the sufficiency of the evidence and the trial court's upward adjustment under Sec. 3C1.1 of the Sentencing Guidelines. Although he originally listed it as an issue on appeal, he did not further challenge the effectiveness of his trial counsel. We affirmed the convictions. United States v. Beaulieu, 900 F.2d 1531 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3252, 111 L.Ed.2d 762 (1990). As his sole claim for relief under Sec. 2255, Beaulieu alleges that he received ineffective assistance of counsel at trial. The district court rejected Beaulieu's Sec. 2255 motion on the ground that he should have raised the ineffective counsel claim on direct appeal. Beaulieu contends that this was error. We agree.

The preferred avenue for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack under 28 U.S.C. Sec. 2255. United

Page 807

States v. Caggiano, 899 F.2d 99, 100 (1st Cir.1990); United States v. Aulet, 618 F.2d 182, 185 (2d Cir.1980); United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943, 104 S.Ct. 1926, 80 L.Ed.2d 472 (1984). Indeed, "collateral review will frequently be the only means through which an accused can effectuate the right to counsel...." Kimmelman v. Morrison, 477 U.S. 365, 378, 106 S.Ct. 2574, 2584, 91 L.Ed.2d 305 (1986). "[A]n accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal." Id. Moreover, ineffectiveness claims frequently require consideration of evidence not contained in the record on direct appeal.

As a result, most circuits follow the general rule that "a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court...." (United States v. Lewis, 902 F.2d 1176, 1180 (5th Cir.1990) (quoting United States v. Higdon, 832 F.2d 312, 313-14) (5th Cir.1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1051, 98 L.Ed.2d 1013 (1988)); see also United States v. Castro, 908 F.2d 85, 89 (6th Cir.1990); United States v. Khoury, 901 F.2d 948, 969 (11th Cir.1990); United States v. Davis, 882 F.2d 1334, 1345 n. 14 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1472, 108 L.Ed.2d 610 (1990); United States v. Hoyos-Medina, 878 F.2d 21, 22 (1st Cir.1989); United States v. Schreiber, 599...