UNITED STATES оf America, Plaintiff-Appellee, v. David Morris ALLEN, Defendant-Appellant.
No. 06-2166
United States Court of Appeals, Sixth Circuit.
Nov. 13, 2007.
475
OPINION
KAREN NELSON MOORE, Circuit Judge.
This case involves Defendant-Appellant David Morris Allen‘s direct appeal of his conviction in the U.S. District Court for the Eastern District of Michigan, for being a felon in possession of a firearm in violation of
I. BACKGROUND
At approximately five a.m. on the morning of September 25, 2004, the Detroit Police Departmеnt executed a raid at Club Fabulous, an after-hours night club. Officer Nevin Hughes saw the defendant standing outside the club holding a gun and then saw him throw the gun onto the ground near a fire hydrant. Apart from Allen, Hughes saw no other people on the sidewalk directly outside the club. Hughes arrested Allen and retrieved the gun. Allen had a felony conviction dating prior to this arrest.
On May 17, 2005, Allen was charged in a one-count indictment with being a felon in possession of a firearm, in violation of
On August 29, 2006, the district court sentenced Allen to fifty-one months’ incarceration followed by two years’ supervised release. Allen filed a timely notice of appeal tо this court.
II. ANALYSIS
A. Standard of Review
Allen contests on appeal the district court‘s denial of his motion for a new trial, without first granting him an evidentiary hearing. We will affirm a district court‘s denial of a criminal defendant‘s motion for a new trial “unless there has been error as a matter of law or a clear and manifest abuse of judicial disсretion.” 3 CHARLES ALAN WRIGHT, NANCY J. KING, & SUSAN R. KLEIN, FEDERAL PRACTICE AND PROCEDURE § 559 (3d ed.1999); see also United States v. Pierce, 62 F.3d 818, 823 (6th Cir. 1995) (citing United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991)), cert. denied, 516 U.S. 1136, 116 S. Ct. 965, 133 L. Ed. 2d 886 (1996). The defendant has the burden of proving that the district court should grant a new trial. Id. (citing United States v. Davis, 15 F.3d 526, 531 (6th Cir. 1994)). Similarly, we review for abuse of discretion a district court‘s decision not to grant an evidentiary hearing before ruling on a motion for a new trial. United States v. Bass, 460 F.3d 830, 838 (6th Cir. 2006), cert. denied, --- U.S. ---, 127 S. Ct. 2959, 168 L. Ed. 2d 280 (2007); United States v. O‘Dell, 805 F.2d 637, 643 (6th Cir. 1986), cert. denied, 484 U.S. 859, 108 S. Ct. 170, 98 L. Ed. 2d 124 (1987).
To determine whether the district court abused its discretion, we must аssess whether the district judge “relief[d] on clearly erroneous findings of fact, or ... improperly applie[d] the law or use[d] an erroneous legal standаrd.” Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995) (citing Southward v. S. Cent. Ready Mix Supply Corp., 7 F.3d 487, 492 (6th Cir. 1993)). “In examining findings of fact, this court may reverse only if after a review of all the evidence, we are left with the definite and firm conviction that a mistake has been committed.” Harrison v. Metro. Gov‘t of Nashville & Davidson County, 80 F.3d 1107, 1112-13 (6th Cir. 1996) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)), cert. denied, 519 U.S. 863, 117 S. Ct. 169, 136 L. Ed. 2d 111 (1996).
We review de novo a criminal defendant‘s ineffective-assistance-of-counsel claim, which is a mixed question of law and fact. Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 2003) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)), cert. denied, 540 U.S. 1133, 124 S. Ct. 1109, 157 L. Ed. 2d 938 (2004). We decline to address ineffective-assistance-of-counsel claims on direct appeal, however, unless the “existing record is adequate to assess prоperly the merits of the claim.” United States v. Hynes, 467 F.3d 951, 969 (6th Cir. 2006) (quoting United States v. Franklin, 415 F.3d 537, 555-56 (6th Cir. 2005)).
B. The District Court‘s Denial of an Evidentiary Hearing before Ruling on Allen‘s Motion
Allen argues that “[a]t a minimum, the trial court should have grantеd [his] request for an evidentiary hearing raised in both his original Rule 33 motion, and renewed in his motion for reconsideration.” Defendant-Appellant Br. at 15. A trial cоurt, however, has the discretion to deny an evidentiary hearing before ruling on a motion for a new trial. O‘Dell, 805 F.2d at 643. We require a defendant to produce at lеast a modicum of evidence in support of a request for an evidentiary hearing on a motion for a new trial based on ineffective assistance of counsel. Bass, 460 F.3d at 838 (holding that “[t]he district court did not abuse its discretion by declining to grant [the defendant] an evidentiary hearing ... because [the defendant] failеd to proffer any evidence that his trial counsel rendered ineffective assistance“). When filing his Rule 33 motion, Allen did not offer any evidence in support of his allegations regarding ineffective assistance of counsel.1 Accordingly, the district court acted within its discretion in denying both Allen‘s original Rule 33 motion and his motion for reconsideration.
C. The District Court‘s Rejection of Allen‘s Ineffective-Assistance-of-Counsel Claim
We reach ineffective-assistance-of-counsel claims on direct appeal only if the record is sufficiently developed to permit us to review the claims. United States v. Jones, 489 F.3d 243, 255 (6th Cir. 2007). The presumption аgainst resolving an ineffective-assistance claim on direct appeal “stems from the fact that a finding of prejudice is a prerequisite to a claim for ineffective assistance of counsel, and appellate courts are not equipped to resolve factual issues.” United States v. Brown, 332 F.3d 363, 368-69 (6th Cir. 2003). “[I]n most cases a motion brought under
Allen argues that his trial counsel provided ineffective аssistance of counsel for four reasons, of which the most significant is Allen‘s allegation that his counsel did not investigate witnesses to the Club Fabulous raid. To evаluate Allen‘s ineffective-assistance claim, we would need evidence such as an affidavit from Allen‘s defense attorney stating why he chose not to interview these witnesses, or further affidavits from the persons who would have potentially served as witnesses indicating the probative value of their testimony. Because insufficient evidence exists for us to determine whether the failure on the part of Allen‘s trial attorney to investigate witnesses to the Club Fabulоus raid constituted ineffective assistance of counsel, we decline to resolve this claim.
D. Allen‘s Equal-Protection Claim
Allen argues that Project Safe Neighborhoods, as аpplied in locations within the Eastern District of Michigan, violates his right to equal protection under the Fourteenth Amendment. Because Allen‘s trial attornеy did not raise this issue through a pre-trial motion in the district court, and in the absence of plain error affecting Allen‘s “substantial rights,” we conclude that Allen has forfeited this argument. United States v. Olano, 507 U.S. 725, 732-35, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993).
III. CONCLUSION
The district court did not abuse its discretion in ruling on Allen‘s motion for a new trial based on a claim of ineffective assistance of counsеl, without granting an evidentiary hearing. The record is insufficiently developed, however, to determine whether there is merit to Allen‘s claim that