Opinion
No. 09-50441 Summary Calendar.
July 22, 2010.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Terrence W. Kirk, Austin, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 1:08-CR-333-1.
Before KING, BENAVIDES, and ELROD, Circuit Judges.
Arthur Creed appeals his conviction and sentence for being a felon in possession of a firearm. Creed argues that he was deprived of the effective assistance of trial counsel because counsel introduced evidence establishing Creed's guilt. He contends that counsel's error failed to subject the prosecution's case to meaningful adversarial testing and that prejudice should be presumed under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Creed's challenge to counsel's effective assistance will not be reviewed by this court. Generally, this court addresses claims on direct appeal of inadequate representation only in cases where the record is adequate to allow the court to consider the claim's merits. United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). In the instant case, the record is not sufficiently developed. Therefore, this court declines to consider this claim without prejudice to Creed's right to raise it in a 28 U.S.C. § 2255 motion. See Massaro v. United States, 538 U.S. 500, 502-06, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (noting that habeas proceedings are the preferred method for raising an ineffective assistance of counsel claim).
Accordingly, the judgment of the district court is AFFIRMED.