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Richard Morales v. United States of America

March 11, 2011

RICHARD MORALES, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA RESPONDENT-APPELLEE.



The opinion of the court was delivered by: Hall, Circuit Judge:

04-0858-pr

Morales v. USA

Argued: August 5, 2009

Before: POOLER, HALL, and LIVINGSTON, Circuit Judges.

Richard Morales appeals from a judgment of the United States District Court for the District of Connecticut (Nevas, J.) denying his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Morales v. United States, 294 F. Supp. 2d 174 (D. Conn. 2003). Because we conclude that both of his ineffective assistance of counsel claims are without merit, the district court's judgment is AFFIRMED.

AFFIRMED.

Richard Morales appeals from the denial of his section 2255 motion*fn1 by the United States District Court for the District of Connecticut (Nevas, J.). Morales v. United States, 294 F. Supp. 2d 174 (D. Conn. 2003). Morales challenged his conviction on the grounds that, inter alia, he did not receive effective assistance of counsel from his trial or appellate lawyers asserting that they neither protected his Sixth Amendment right to a public trial nor challenged what Morales contends was an improper sentence on his conspiracy conviction. Because, based on the record before the district court, Morales failed to demonstrate plausibly that his counsel acted unreasonably in connection with what he asserts was a brief closure of the courtroom, the district court's summary denial of this portion of his motion is AFFIRMED. As to the argument that counsel's assistance related to sentencing was ineffective, although the district court relied on an exception to our holding in United States v. Orozco-Prada, 732 F.2d 1076 (2d Cir. 1984) that we have yet to recognize, we AFFIRM the district court's ruling because Morales cannot establish prejudice stemming from his counsel's failure to challenge that sentence on appeal.

BACKGROUND

On December 8, 1994, Morales was indicted along with 32 other individuals for a variety of serious crimes related to their participation in the Latin Kings street gang. Morales, who was alleged to have been the gang's "Director of Security," was charged with multiple RICO*fn2 and VICAR*fn3 violations, as well as: (i) conspiracy to possess with intent to distribute marijuana, heroin, cocaine, and cocaine base in violation of 21 U.S.C. § 846 ("Count 27"); and (ii) possession with intent to distribute 50 or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

In the runup to the trial, the district court decided to reserve the courtroom's gallery for the day of jury selection. The court explained to the myriad prosecutors and defense attorneys:

Because at this point I don't know how many jurors we'll have left in the pool, I'm going to guess it's going to be somewhere around 50 or so, give or take. All of the rows in the spectator section of the courtroom are going to be used for the jurors to be seated. I'm not going to permit any spectators to be seated among the prospective jurors so that I want counsel to be on notice that on Friday there will be no room for any spectators. All of those seats are going to be taken by prospective jurors. So everyone should be aware of that.

(App. for Appellant's Br. 135.)

On Friday, June 30, 1995, after about a week of voir dire, the district court selected the defendants' jury. That morning, the judge first spoke to certain individual jurors about why they believed they ought to be excused from jury duty, and then brought the jury pool, consisting of 48 persons, into the courtroom so that the prospective jurors could restate their names for the attorneys. Once this was done, the judge sent them back to the jury assembly room and heard peremptory challenges from the parties. Following a short recess, the court brought the remaining prospective jurors back into the courtroom and drew the names of 16 persons to be seated on the jury.

After a three-month trial, Morales was convicted on all counts and sentenced to multiple life-terms in prison.*fn4 One of the life sentences was imposed on Morales's conviction on Count 27, the drug conspiracy count. Although the jury did not return a special verdict as to which drugs Morales conspired to possess, the district court's sentence was premised on a conspiracy to possess cocaine and/or cocaine ...


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