FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  July 14, 2011
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 10-3074
          v.                                             (D. of Kan.)
 HAROLD WALLACE, a/k/a Chico,                (D.C. No. 2:07-CR-20168-JWL-13)
 a/k/a Pone,


               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **



      Harold Wallace, a federal prisoner, appeals his sentence on the grounds of

ineffective assistance of counsel. But both parties agree this claim should

properly be raised in a habeas proceeding. Exercising jurisdiction under 28

U.S.C. § 1291, we DISMISS this appeal.


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                       I. Background

      Wallace pleaded guilty to conspiracy to possess with intent to distribute,

and to distribute, cocaine base and cocaine. He also pleaded guilty to an attempt

to possess with intent to distribute cocaine. The district court sentenced Wallace

to 300 months for the first charge and 240 months for the second charge, to run

concurrently.

      Wallace’s trial counsel filed a notice of appeal, but withdrew shortly

thereafter. Wallace’s new counsel now argues this direct appeal should be

dismissed so that he can raise ineffective assistance of counsel claims in a

collateral attack in district court.

                                        II. Analysis

      The parties agree that ineffective assistance of counsel claims must

ordinarily be raised in a collateral 28 U.S.C. § 2255 proceeding. See United

States v. Galloway, 

, 1242 (10th Cir. 1995). There are some

instances where an ineffective assistance of counsel claim will be entertained on

direct appeal: for example, “where the record is sufficient, or where the claim

simply does not merit further factual inquiry.” United States v. Gordon, 

, 1570 (10th Cir. 1993). Neither Wallace nor the government raise this

exception, and we decline to do so sua sponte.




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                        III. Conclusion

Accordingly, we DISMISS this appeal.

                                     ENTERED FOR THE COURT

                                     Timothy M. Tymkovich
                                     Circuit Judge




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