18-292-pr
Zayac v. United States

                          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
14th day of June, two thousand nineteen.

Present:
                 DEBRA ANN LIVINGSTON,
                 GERARD E. LYNCH,
                 RICHARD J. SULLIVAN,
                       Circuit Judges.

_____________________________________

ANDREW ZAYAC,

                         Petitioner-Appellant,

                 v.                                                  18-292-pr

UNITED STATES OF AMERICA,

                  Respondent-Appellee.
_____________________________________

For Petitioner-Appellant:                   ANDREW J. FRISCH, The Law Offices of Andrew J.
                                            Frisch, New York, NY.

For Respondent-Appellee:                    BRIAN P. LEAMING, (Sandra S. Glover, on the brief), for
                                            John H. Durham, United States Attorney for the District
                                            of Connecticut, New Haven, CT.




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          Appeal from a judgment of the United States District Court for the District of Connecticut

(Hall, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Petitioner-Appellant Andrew Zayac (“Zayac”) appeals from an order of the United States

District Court for the District of Connecticut, dated January 5, 2018, denying his petition for habeas

relief under 28 U.S.C. § 2255. See Ruling, No. 16-cv-952 (JCH) (D. Conn. Jan. 5, 2018), ECF

No. 21.       We note that, although Zayac raised several arguments in his petition before the district

court, a different panel of this Court granted Zayac a Certificate of Appealability only as to one

question—whether “his trial attorneys rendered ineffective assistance of counsel in failing to

inform him of the trial court’s comments during a charge conference about [his] request for a jury

charge on a duress defense, and to explain to him that, if he testified as to duress, a duress charge

might be given.”        Motion Order, No. 18-292-pr (2d Cir. Apr. 25, 2018), ECF No. 18.           We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

          “Pursuant to § 2255, a federal prisoner may move to vacate, set aside, or correct his

sentence on four grounds: (1) that the sentence was imposed in violation of the Constitution or

laws of the United States, or (2) that the court was without jurisdiction to impose such sentence,

or (3) that the sentence was in excess of the maximum authorized by law, or (4) is otherwise subject

to collateral attack.” United States v. Hoskins, 905 F.3d 97, 102 (2d Cir. 2018) (internal quotation

marks and brackets omitted).       Our Court has repeatedly held “that the scope of review on a § 2255

motion should be narrowly limited in order to preserve the finality of criminal sentences and to

effect the efficient allocation of judicial resources.” Graziano v. United States, 83 F.3d 587, 590


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(2d Cir. 1996) (internal quotation marks omitted).    “In appeals under 28 U.S.C. § 2255, this Court

reviews factual findings for clear error and questions of law de novo.”      Zhang v. United States,

506 F.3d 162, 166 (2d Cir. 2007).

       The Supreme Court in Strickland v. Washington set forth a two-part test for evaluating

claims of ineffective assistance of counsel.     466 U.S. 668, 687 (1984).       To warrant relief, a

petitioner must establish both elements of that test: (1) that counsel’s performance “fell below an

objective standard of reasonableness”; and (2) “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

688, 694; see also Weingarten v. United States, 865 F.3d 48, 52 (2d Cir. 2017).       When assessing

ineffective assistance claims, a court need not “address both components of the inquiry if the

defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.           The “ultimate

focus of inquiry . . . [is] on the fundamental fairness of the proceeding whose result is being

challenged.” Id. at 696.

       This Court has repeatedly held that defense counsel must inform a criminal defendant “of

the nature and existence of the right to testify,” and that this obligation is a component of effective

assistance. Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997).         Accordingly, “any claim by the

defendant that defense counsel has not discharged this responsibility—either by failing to inform

the defendant of the right to testify or by overriding the defendant’s desire to testify” is evaluated

pursuant to Strickland’s two-prong test.”     Id. In this case, statements by Zayac himself during

trial show that his counsel indeed discharged this aspect of counsel’s responsibility: Zayac attested

to the fact that he was aware of his right to testify and had discussed the pros and cons of doing so

with his lawyers on multiple occasions.     Government Appendix (“GA”) 300-01.          Nevertheless,

he asserts that counsel rendered ineffective assistance by not informing him of statements by Judge


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Hall during a charging conference at which he was not present regarding his testimony and the

possibility of a duress instruction, as any observations on the availability of a duress instruction

went to “the core of [his] defense and decision to testify.” See Pet.-App.’s Brief at 32.

         Even assuming arguendo that Zayac could show that his counsel’s performance was

objectively unreasonable, we agree with the district court that Zayac failed to demonstrate a

reasonable likelihood of a different result.     As an initial matter, it bears noting that although

Zayac was not present for Judge Hall’s comments at the first charge conference, he was present

two days later when Judge Hall made remarkably similar comments concerning the viability of a

duress defense and the potential impact of Zayac’s testimony on that inquiry.            GA 300 (“I guess

we’ll have to talk about [whether you] are . . . still asking for the duress charge[.]     Well, we won’t

know until Mr. Zayac testifies or would you ask for one without his testimony?”). Since Zayac

had the benefit of those comments before making his decision not to testify, he could not have

been prejudiced by counsel’s failure to apprise him of Judge Hall’s earlier consistent statements.

See Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992).           Here, Judge Hall focused on the

jury’s likely disbelief of Zayac’s testimony, which would have constituted his fifth version of the

events at issue, concluding that this testimony and a duress instruction would not have created a

reasonable probability of a different result. We agree.         In addition, this testimony would not

have justified a duress instruction in the first place.    Zayac asserts that he would have testified

that Heriberto Gonzalez (“Gonzalez”), who allegedly forced Zayac to participate in the charged

crimes under duress, left Zayac in the car, taking the gun with him, and that Gonzalez was gone

from the car for thirty seconds to one minute. Given Zayac’s several different accounts of the

events of that night, it is far from clear what account might have emerged if Zayac had taken the

stand.   But even assuming that Zayac would have testified in conformity with his habeas affidavit,


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this new testimony would not have altered the conclusion that Zayac had a reasonable opportunity

to escape while Gonzalez was away from the car disposing of the victim’s body. See United

States v. Zayac, 765 F.3d 112, 121 (2d Cir. 2014).   Accordingly, Zayac would still not have been

entitled to a duress instruction, and he was therefor not prejudiced by counsel’s alleged failure to

apprise him of Judge Hall’s statements during the charge conference.

       We have considered Zayac’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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