Summary Calendar UNITED STATES OF AMERICA v. Marvin Albro

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40830
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARVIN ALBRO
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:06-CR-25-1
Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
Marvin Albro appeals his conviction for being a felon in possession of a
firearm and for possession with intent to distribute five grams or more of crack
cocaine. Albro was sentenced to a term of imprisonment of 360 months on each
count, the terms to run concurrently.
Albro argues that he was denied the effective assistance of trial counsel
because counsel exhibited a conflict of interest in engaging in an ex parte
conference with the district court relative to Albro’s decision not to testify at
United States Court of Appeals
Fifth Circuit
F I L E D
November 26, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40830
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trial. He further argues that counsel was ineffective in failing to seek a
continuance when defense witnesses did not appear at trial. Albro asserts that
counsel advised the witnesses that they did not have to appear.
“The general rule in this circuit is that a claim of ineffective assistance of
counsel cannot be resolved on direct appeal when the claim has not been raised
before the district court since no opportunity existed to develop the record on the
merits of the allegations.” United States v. Higdon, 832 F.2d 312, 313-14 (5th
Cir. 1987). This court will consider claims of inadequate representation on direct
appeal only in rare cases where the record is sufficiently developed to allow a
fair evaluation of the merits of the claim. Id. at 314. If the claims cannot be
fairly evaluated on the record, the court will decline to review the issue without
prejudice to the defendant’s right to raise it in a later proceeding. See United
States v. Gulley, 526 F.3d 809, 821 (5th Cir.), cert. denied, 129 S. Ct. 159 (2008).
Albro’s claims of ineffective assistance of counsel were not sufficiently
developed in the district court and were not specifically addressed by the district
court. The court declines to address these ineffective assistance claims on direct
appeal, without prejudice to Albro’s right to raise them in a 28 U.S.C. § 2255
motion. See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
Albro’s conviction is AFFIRMED.

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