     10-2495-cr
     United States v. Morales


                                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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 7th day of June, two thousand eleven.
 4
 5   PRESENT:           DEBRA ANN LIVINGSTON,
 6                      DENNY CHIN,
 7                                     Circuit Judges,
 8                      JED S. RAKOFF,
 9                                     District Judge.*
10
11
12   UNITED STATES OF AMERICA,
13             Appellee,
14
15            -v.-                                        No. 10-2495-cr
16
17   JOHN WILBUR MORALES, a.k.a. John Morales Santos, a.k.a. Jhon Morales,
18             Defendant-Appellant.
19
20
21                                  PAUL P. RINALDO, Forest Hills, NY, for Defendant-Appellant.
22
23                                  ELIZABETH J. KRAMER, Assistant United States Attorney (Peter
24                                  A. Norling, Assistant United States Attorney, on the brief), for
25                                  Loretta E. Lynch, United States Attorney, Eastern District of New
26                                  York, Brooklyn, NY, for Appellee.
27
28


              *
               The Honorable Jed S. Rakoff, of the United States District Court for the Southern
     District of New York, sitting by designation.
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3          Defendant-Appellant John Wilbur Morales appeals from a judgment of the United States

 4   District Court for the Eastern District of New York (Johnson, J.), entered June 18, 2010, convicting

 5   him, after trial by jury, of conspiracy to import 100 grams or more of heroin, in violation of 21

 6   U.S.C. §§ 960(b)(2)(A) and 963; importation of 100 grams or more of heroin, in violation of 21

 7   U.S.C. §§ 952(a) and 960(b)(2)(A); conspiracy to distribute and possess with intent to distribute 100

 8   grams or more of heroin, in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846; and possession with

 9   intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and

10   841(b)(1)(B), and sentencing him to 89 months’ incarceration and five years’ supervised release.

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

12   issues on appeal.

13          Morales argues that his judgment of conviction should be vacated on the basis of the alleged

14   ineffective assistance of his trial counsel, E. Abel Arcia and Ernest Atalay. Specifically, Morales

15   contends that Arcia and Atalay failed to convey to him various plea offers extended by the

16   government prior to trial, and he requests that the judgment be vacated and the case remanded so

17   that he may “be given the opportunity to plead guilty to the never conveyed plea offer.”

18          We are “generally disinclined to resolve ineffective assistance claims on direct review.”

19   United States v. Gaskin, 364 F.3d 438, 467 (2d Cir. 2004); see also United States v. Salameh, 152

20   F.3d 88, 161 (2d Cir. 1998) (noting our “baseline aversion to resolving ineffectiveness claims on

21   direct review”). When presented with an ineffective assistance of counsel claim on direct appeal,

22          we may: (1) decline to hear the claim, permitting the appellant to raise the issue as
23          part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255;

                                                      2
 1          (2) remand the claim to the district court for necessary factfinding; or (3) decide the
 2          claim on the record before us.
 3
 4   United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). The Supreme Court has emphasized,

 5   however, that “in most cases a motion [for habeas corpus] brought under § 2255 is preferable to

 6   direct appeal for deciding claims of ineffective assistance,” since, inter alia, “[w]hen an ineffective-

 7   assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial

 8   record not developed precisely for the object of litigating or preserving the claim and thus often

 9   incomplete or inadequate for this purpose.” Massaro v. United States, 538 U.S. 500, 504-05 (2003).

10          Although the district court received various representations from the parties below regarding

11   whether Morales’s counsel and the government had engaged in plea negotiations and whether any

12   resulting offers had in fact been conveyed to Morales, the district court did not receive testimony

13   or make factual findings as to the adequacy of Morales’s representation or the potential that Morales

14   may have been prejudiced, and we do not believe that the record on appeal is adequate for resolution

15   of Morales’s claim at this time. Thus, we decline to reach the merits of Morales’s claim of

16   ineffective assistance, without prejudice to that claim being raised in a future 28 U.S.C. § 2255

17   petition. Rather than proceeding on a limited appellate record, Morales’s claim should “be litigated

18   in the first instance in the district court, the forum best suited to developing the facts necessary to

19   determining the adequacy of representation.” Massaro, 538 U.S. at 505; see also id. at 505-06

20   (noting that the district court “may take testimony from witnesses for the defendant and the

21   prosecution and from the counsel alleged to have rendered the deficient performance,” and

22   observing that “the § 2255 motion often will be ruled upon by the same district judge who presided

23   at trial,” thus providing “an advantageous perspective for determining the effectiveness of counsel’s

24   conduct and whether any deficiencies were prejudicial”).

                                                        3
1          We have considered all of Appellant’s remaining arguments and find them to be without

2   merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

3

4                                                     FOR THE COURT:
5                                                     Catherine O’Hagan Wolfe, Clerk
6




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