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12/12/89 United States of America v. Rodney Cyrus

December 12, 1989

UNITED STATES OF AMERICA

v.

RODNEY CYRUS, A/K/A VICTOR BARLOW, APPELLANT 1989.CDC.379 DATE DECIDED: DECEMBER 12, 1989



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia, Criminal No. 88-00153-01.

APPELLATE PANEL:

Mikva, Edwards, and Williams, Circuit Judges. Opinion for the Court filed by Circuit Judge Mikva.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

Appellant, Rodney Cyrus appeals his criminal conviction for possession of over 50 grams of "crack" cocaine. Cyrus alleges that he was denied effective assistance of counsel because his trial attorney failed to challenge evidence as the product of an unlawful Terry stop or to move for a mistrial in light of juror misconduct. Appellant also challenges the constitutionality of his sentence imposed under the Federal Sentencing Guidelines, alleging that the higher sentence imposed for crack possession (compared to cocaine possession) offends equal protection, due process, the eighth amendment, and is void for vagueness. Three weeks before this hearing, appellant requested a stay in order to develop a record on the ineffective assistance of counsel claim. However, because this request was made so late, we denied the request. We take this opportunity both to consider appellant's Federal Sentencing Guideline claims and to clarify the law of this circuit regarding preservation of appeal of ineffective assistance of counsel claims.

We find that appellant's challenges to the Federal Sentencing Guidelines are without merit. We also find that because appellant's collateral proceeding for ineffective assistance is still pending, we must remand this part of his appeal.

BACKGROUND

Appellant, Rodney Cyrus, was arrested for possession of crack cocaine on April 16, 1988. Cyrus had been approached by two law enforcement officers as he disembarked from a morning train in Union Station. After a brief conversation, Cyrus consented to letting one of the officers search his bag. The officer found three plastic packets containing 178 "rocks" of crack cocaine.

Prior to trial, appellant's counsel moved to suppress evidence of the cocaine on the ground that his client had not voluntarily consented to the search because of the coercive nature of the encounter. After a hearing, Judge Norma Holloway Johnson denied the motion.

Two days before jury deliberations were to begin, the court discovered that one of the jurors had spoken with one of the government's witnesses. Although defense counsel asked that the juror be excused, he did not request a mistrial. The court excused the juror.

Cyrus was subsequently convicted of possession with intent to distribute over 50 grams of cocaine base. 21 U.S.C. §§ 841(a) and 841(b)(1)(iii) (1989). Judge Johnson sentenced him to 121 months in prison, a five-year term of supervised release, and a special assessment of 50 dollars. I INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant contends that his trial counsel was constitutionally ineffective both because he failed to raise Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), as a basis for suppressing evidence obtained during the Union Station encounter, and because he failed to move for a mistrial based on alleged juror misconduct. Accordingly, appellant filed an action under 28 U.S.C. § 2255, which permits a federal prisoner to challenge his conviction on the ground that defective representation deprived him of his sixth amendment rights. Three weeks before oral argument, counsel requested that this court stay its proceedings pending the outcome of appellant's § 2255 action.

Under normal circumstances, we would have granted such a stay. Both equity and judicial economy require that a criminal defendant build an evidentiary record on his ineffective-assistance claims before appealing his conviction on this basis. Without a factual record, it is virtually impossible for this court to determine whether alleged episodes of substandard representation reflect the trial counsel's "informed tactical choice" or a "decision undertaken out of ignorance of the relevant law." United States v. Brown, 155 U.S. App. D.C. 177, 476 F.2d 933, 935 (D.C. Cir. 1973). However, because the hearing date was imminent, and other issues were ripe for review, we declined to stay the case. Nevertheless, we take this opportunity to clarify this circuit's law on the handling of sixth amendment claims raised without a record.

As this court explained in United States v. DeCoster, 159 U.S. App. D.C. 326, 487 F.2d 1197 (D.C. Cir. 1973), where a party has not raised his sixth amendment claims in a motion for a new trial or a collateral attack on the judgment, this court must remand for an evidentiary hearing. See also United States v. Hinton, 203 U.S. App. D.C. 187, 631 F.2d 769, 777 (D.C. Cir. 1980). An evidentiary hearing is critical to our evaluation of most ineffective assistance of counsel claims, since these frequently concern matters outside the trial record, such as whether counsel properly investigated the case, considered relevant legal theories, or adequately prepared a defense. In ...


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