USA v. Arthur Creed

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USA v. Arthur Creed

Doc. 0

Case: 09-50441

Document: 00511182325

Page: 1

Date Filed: 07/22/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50441 S u m m a r y Calendar July 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. A R T H U R CREED, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:08-CR-333-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* A r t h u r Creed appeals his conviction and sentence for being a felon in p o s s e s s io n of a firearm. Creed argues that he was deprived of the effective a s s is t a n c e of trial counsel because counsel introduced evidence establishing C r e e d 's guilt. He contends that counsel's error failed to subject the prosecution's c a s e to meaningful adversarial testing and that prejudice should be presumed u n d e r United States v. Cronic, 466 U.S. 648 (1984).

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-50441

Document: 00511182325 Page: 2 No. 09-50441

Date Filed: 07/22/2010

C r e e d 's challenge to counsel's effective assistance will not be reviewed by t h is court. Generally, this court addresses claims on direct appeal of inadequate r e p r e s e n t a t io n only in cases where the record is adequate to allow the court to c o n s id e r the claim's merits. United States v. Higdon, 832 F.2d 312, 313-14 (5th C ir . 1987). In the instant case, the record is not sufficiently developed.

Therefore, this court declines to consider this claim without prejudice to Creed's r ig h t to raise it in a 28 U.S.C. § 2255 motion. See Massaro v. United States, 538 U .S . 500, 502-06 (2003) (noting that habeas proceedings are the preferred m e t h o d for raising an ineffective assistance of counsel claim). A c c o r d in g ly , the judgment of the district court is AFFIRMED.

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