United States v. Baez ( 2022 )

21-2020
United States v. Baez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 18th day of October, two thousand twenty-two.
PRESENT:
JOHN M. WALKER, JR.,
RICHARD J. SULLIVAN,
Circuit Judges,
MARY KAY VYSKOCIL,
District Judge. *
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 21-2020
HUMBERTO BAEZ,
Defendant-Appellant. †
_____________________________________
* Judge Mary Kay Vyskocil, of the United States District Court for the Southern District of New
York, sitting by designation.
† The Clerk of Court is respectfully directed to amend the caption as set forth above.
FOR DEFENDANT-APPELLANT: CÉSAR DE CASTRO, The Law Firm of
César de Castro, P.C., New York, NY.
FOR APPELLEE: NOMI D. BERENSON, Assistant United
States Attorney (David C. James,
Assistant United States Attorney, on
the brief), for Breon Peace, United
States Attorney for the Eastern
District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Allyne R. Ross, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the defendant’s appeal is DISMISSED.
Humberto Baez appeals from the district court’s judgment of conviction
following a jury trial in which he was found guilty of conspiracy to import
five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952(a), 963, 960(a),
and 960(b)(1)(B)(ii); conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a), and
841(b)(1)(A)(ii)(II); and distribution and possession with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a) and
841(b)(1)(A)(ii)(II). The district court sentenced Baez to 156 months’
imprisonment and five years’ supervised release.
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On appeal, Baez – now represented by new counsel – argues that he received
ineffective assistance of counsel from both David Gordon, who represented him
in portions of the pretrial proceedings below, and Lawrence Herrmann, who
represented him for the remainder of the pretrial proceedings, at trial, and at
sentencing. Specifically, Baez contends that (1) Herrmann failed to speak with
the witnesses whom Baez had identified as exculpatory; (2) Gordon and
Herrmann failed to oppose the government’s motions in limine, make their own
pretrial motions, or raise a sufficient number of objections at trial; (3) Herrmann’s
trial performance was adversely affected by his hearing impairment; (4) Herrmann
improperly bolstered the credibility of a government witness; and (5) Herrmann
provided inadequate sentencing advocacy. We assume the parties’ familiarity
with the underlying facts, procedural history, and issues on appeal.
To succeed on his ineffective-assistance-of-counsel claims, Baez must
demonstrate (1) that his counsel’s performance was constitutionally deficient, and
(2) that this deficient performance prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687–88, 691–92 (1984). With respect to the performance
prong, “counsel is strongly presumed to have rendered adequate assistance and
[to have] made all significant decisions in the exercise of reasonable professional
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judgment.” Id. at 690. To demonstrate prejudice, Baez must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. When determining an
ineffectiveness claim, a court need not address both prongs if the defendant fails
to make a showing on one. See id. at 697.
Where, as here, a criminal defendant asserts an ineffective-
assistance-of-counsel claim on direct appeal through newly retained counsel, we
may either “(1) decline to hear the claim, permitting the appellant to raise the issue
as part of a subsequent [28 U.S.C.] § 2255 petition; (2) remand the claim to the
district court for necessary fact-finding; or (3) decide the claim on the record before
us.” United States v. Leone, 215 F.3d 253, 256 (2d Cir. 2000). Although we have
“the discretion to choose among these three options,” id., the Supreme Court has
cautioned that “few [ineffective-assistance-of-counsel] claims will be capable of
resolution on direct appeal,” Massaro v. United States, 538 U.S. 500, 507 (2003).
Similarly, we have expressed a “baseline aversion to resolving ineffectiveness
claims on direct review.” United States v. Williams, 205 F.3d 23, 35 (2d Cir. 2000)
(internal quotation marks omitted). Thus, we generally will not decide the merits
of an ineffective-assistance-of-counsel claim in the first instance on direct appeal
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unless its “resolution is beyond any doubt.” United States v. Matos, 905 F.2d 30,
32 (2d Cir. 1990) (internal quotation marks omitted).
Here, each of Baez’s allegations of ineffective assistance would benefit from
further development of the record as to both prongs of the Strickland test. This is
especially true considering that neither Gordon nor Herrmann has been given an
opportunity to respond to the allegations and arguments asserted by Baez. See
United States v. Khedr, 343 F.3d 96, 100 (2d Cir. 2003) (explaining that an “allegedly
ineffective attorney should generally be given the opportunity to explain the
conduct at issue”); see also Massaro, 538 U.S. at 501 (noting that the district court
that presided over the proceedings below generally has “an advantageous
perspective for determining the effectiveness of counsel’s conduct and whether
any deficiencies were prejudicial”). Because a “collateral proceeding under
section 2255” would “provide[] [Baez] with an ample remedy for any
ineffectiveness claim” and promote judicial economy by allowing the district court
“to decide all of [Baez’s] collateral claims in one proceeding,” United States v. Doe,
365 F.3d 150, 154 (2d Cir. 2004), we decline to hear his
ineffective-assistance-of-counsel claims now and will instead permit him to raise
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those claims as part of a subsequent section-2255 motion, should he choose to file
one in the district court.
Given that Baez has raised no other arguments besides these claims for
ineffective assistance of counsel, we DISMISS the appeal in its entirety.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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