US v. Crosby

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Jeffrey R. Howard, Appellate Judge and Rogeriee Thompson, Appellate Judge. Per Curiam. Unpublished. [11-1951]

Case: 11-1951

Document: 00116442624

Page: 1

Date Filed: 10/11/2012

Entry ID: 5681823

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 11-1951
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN CROSBY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Howard, and Thompson, Circuit Judges.
James B. Krasnoo, with whom Benjamin L. Falkner and
Krasnoo|Klehm LLP were on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney
(Appellate Chief), with whom Thomas E. Delahanty II, United States
Attorney, was on brief, for appellee.

October 11, 2012

Case: 11-1951

Document: 00116442624

PER CURIAM.
Crosby's

claim

that

Page: 2

Date Filed: 10/11/2012

Entry ID: 5681823

The sole ground of this appeal is John
his

trial

lawyer

furnished

ineffective

assistance by failing to make a pretrial motion to suppress a
shotgun found in his car.

The claim makes its debut here, and that

is a problem for Crosby because we generally will not consider an
ineffective-assistance claim "on direct appeal, requiring instead
that [the] defendant raise it (if at all) in a separate collateral
proceeding."
2011).

United States v. Guerrier, 669 F.3d 1, 9 (1st Cir.

There is, of course, an exception "for the rare case where

the record is sufficiently developed and the important facts are
undisputed." Id. But Crosby's case falls within the general rule,
not the long-odds exception to it, given the gaps in the record.
To give just one example:

the record is unclear whether the

lawyer's decision, "when made, was a calculated stratagem or a mere
oversight."

See United States v. Moran, 393 F.3d 1, 10-11 (1st

Cir. 2004).

The parties whisper possible reasons why the lawyer

did not move to suppress, but speculation like this does not cut
it.

See, e.g., United States v. Soldevila-López, 17 F.3d 480, 485

(1st Cir. 1994).

Faced with this and other unknowns, we must

dismiss Crosby's appeal, though our ruling is without prejudice to
his pursuing the ineffective-assistance claim through a petition
filed in the district court under 28 U.S.C. § 2255.
Guerrier, 669 F.3d at 9.

See, e.g.,

Naturally, we take no position on how a

petition like that might fare.

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