UNITED STATES v. MIGHTY (2018)

SUMMARY ORDER

Edward Mighty appeals from a judgment of conviction following a guilty plea in the Western District of New York (Geraci, J.) sentencing him to 300 months' imprisonment. Mighty was convicted and sentenced for possession with intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 846 and possession of firearms in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c).

Mighty argues that his plea of guilty was not knowing and voluntary by reason of his lawyer's ineffective assistance. Mighty alleges that he met with his lawyer only twice before pleading guilty, that he had no opportunity to review the plea agreement prior to entering the courtroom on the day he signed it, that his lawyer assured him he would receive probation, and that he never had an opportunity to discuss the strengths of the government's case against him or any possible defenses he may have.

When faced with a claim of ineffective assistance of counsel on direct appeal, this Court has three options. It may:

(1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding; or (3) decide the claim on the record before us.

United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003) (citing United States v. Leone, 215 F.3d 253, 256 (2d Cir. 2000) ). The first of these is the preferred method for handling such claims because “[w]hen an ineffective–assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose.” Massaro v. United States, 538 U.S. 500, 504–05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

Here, the record is insufficiently developed regarding the performance of Mighty's attorney at the time of his plea or any prejudice that Mighty suffered as a result of the alleged deficient performance. Recognizing this difficulty, Mighty asks us to “either decline to hear this appeal, permitting Mighty to pursue a claim under 18 U.S.C. § 2255; or remand to the district court to create a full record” for our later consideration. Appellant's Br. at 8. Accordingly, we decline to hear the ineffective assistance claim and dismiss it without prejudice to Mighty raising the claim pursuant to 28 U.S.C. § 2255.

For the foregoing reasons, the judgment of the district court is AFFIRMED.