UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SALVADOR OLMOS-RODRIGUEZ,

Defendant - Appellant.

No. 05-2259

(D. New Mexico)

(D.Ct. No. CR-04-1652 J)

ORDER AND JUDGMENT*

Before HENRY, BRISCOE, and O'BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Petitioner Salvador Olmos-Rodriguez pled guilty to one count of unlawful reentry by an alien previously deported following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to forty-six months imprisonment, with two years of supervised release.
Olmos-Rodriguez's appointed counsel, Edward O. Bustamante, has filed an Anders brief and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).1 Olmos-Rodriguez has filed a written response in the form of a letter to this Court, which we will construe as the defendant's brief in this matter.2 The government has declined to file a brief. We therefore base our conclusion on counsel's brief, Olmos-Rodriguez's letter, and our own review of the record.

In his Anders brief, counsel identified ineffective assistance of counsel as the only potential non-frivolous issue for consideration. Olmos-Rodriguez's letter to this Court seems to pursue this argument, stating that his trial counsel never advised him of his rights or reviewed his case with him. Reading Olmos-
Rodriguez's letter liberally, it appears he is in fact seeking to have this Court review an ineffective assistance of counsel claim. However, ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. U.S. v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Ineffective assistance of counsel claims brought on direct appeal are almost always properly dismissed. Id. In order for this Court to effectively review such a claim, the district court should develop a factual record on the matter. Id.; U.S. v. Boigegrain, 155 F.3d 1181, 1186 (10th Cir. 1998) ("We are reluctant to hear claims of ineffective assistance advanced for the first time in this court because we work at a distinct disadvantage when we operate without the factual development and judicial reasoning afforded by lower court proceedings.").

Having reviewed the submissions of counsel and Olmos-Rodriguez, as well as the record in this case, we GRANT counsel's motion to withdraw3 and DISMISS this appeal.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge