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Second Circuit Finds In Camera Sentencing Colloquy Conducted in Defendant’s Absence Violated Fifth Amendment Rights

In Morales v. United States, 15-243-cv (Pooler, Parker, Livingston), the Second Circuit granted habeas relief to petitioner Jorge Luis Morales on the grounds that it was ineffective assistance of counsel for his attorney not to raise a Fifth Amendment challenge to the lower court’s (Nevas, J.) decision to conduct in camera sentencing discussions outside of Morales’s presence.  Although the Circuit chose to decide this matter via non-precedential summary order, this represents the rare case where ineffective assistance of appellate counsel excused a habeas petitioner’s procedural default.

On January 7, 2008, Morales pleaded guilty to conspiracy to possess with intent to distribute 1,000 grams or more of heroin.  During Morales’s sentencing hearing, a scheduling dispute arose between the parties. In response to the dispute, the judge called a recess and gathered the prosecutor, the defense attorney, and the probation officer in his robing room to discuss the scheduling issue.  Neither Morales nor the court reporter were present. 

At the end of the in camera colloquy, the judge offered to impose a 25-year sentence, making clear that the offer was for “today only.”  The defense attorney then left the robing room to transmit this offer to Morales.

When the judge returned to the bench, the defense attorney communicated that Morales had rejected the offer.  Defense counsel failed to object to the in camera proceedings or to make a contemporaneous record of what had happened.  When he was provided with an opportunity to speak, however, Morales himself raised the issue of the off-the-record discussions, stating “I don’t know what’s going on right now.”  The judge explained that “[w]hatever we discussed off the record is no longer applicable.  This will be a straight out sentencing.”  The proceedings were ultimately adjourned to a later date, by which time Morales had moved pro se for the appointment of new counsel due in part to his concern regarding defense counsel’s handling of the off-the record discussions.  Ultimately, Morales received a 28-year sentence, three years higher than the sentence offered during the in camera session.

Morales was represented by the same attorney on his direct appeal, in which he raised several arguments with respect to the propriety of his sentence.  Defense counsel failed, however, to argue that the in camera sentencing offer violated Morales’s Fifth or Sixth Amendment rights.  The Second Circuit affirmed Morales’s sentence, finding that the sentencing judge had committed harmless error in erroneously calculating Morales’s mandatory minimum.  Morales subsequently filed the instant habeas petition, in which he argued that the off-the-record sentencing offer violated his Sixth and Fifth Amendment rights.  The lower court (Shea, J.) declined to reach the merits of these claims on the basis that they were procedurally defaulted because they were not raised on direct appeal.

On appeal, the Second Circuit first held that the in camera offer violated Morales’s Fifth Amendment due process right “to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.”  The Court concluded that the offer was a critical part of the proceedings against Morales and rejected the government’s argument that Morales’s presence would not have contributed to the fairness of the procedure, citing Morales’s contemporaneous complaints that he did not understand the offer.  It also rejected the argument that Morales had waived his right to be present by failing to assert that right, pointing to Morales’s contemporaneous complaints and his pro se request to be appointed new counsel.

Having determined that Morales’s constitutional rights had been violated, the Court next considered the argument that Morales had defaulted on this claim by failing to raise it on direct appeal.  The Court briefly explained the standard for excusing procedural default, which requires a petitioner to establish “either cause and actual prejudice, or that he is actually innocent.”  Reviewing the lower court’s decision de novo, the Court held that Morales’s procedural default was excused under this standard.

The Court explained that ineffective assistance of appellate counsel can constitute cause to excuse a procedural default, and noted that appellate counsel’s failure to raise a claim on appeal constitutes ineffective performance where counsel “omitted significant and obvious issues while pursing issues that were clearly and significantly weaker.”  The Court found that the defense attorney’s decision to raise weaker arguments on appeal while failing to raise Morales’s “significant and obvious” Fifth Amendment claim constituted ineffective assistance of counsel.  The subject of improper courtroom closings has long been an issue with which the Second Circuit has expressed concern.  See, e.g., United States v. Alcantara, 396 F.3d 189 (2005) (vacating a plea and sentence because they were conducted in the district court’s robing room).  Here, the district court went a step further and even excluded the defendant from the proceedings.

The Court further held that Morales was prejudiced by this constitutionally ineffective representation, noting that Morales had expressed contemporaneous confusion with respect to the in camera offer and concluding that there was a “substantial probability” that the original panel considering Morales’s direct appeal would have remanded for resentencing if it had had the opportunity to consider his Fifth Amendment claims in conjunction with the improperly calculated mandatory minimum.  Accordingly, the Circuit reversed the ruling denying Morales’s petition and remanded the case for resentencing.

Morales is an example of the growing trend in the Circuit of granting reversal via summary order.  The case represents a rare instance of ineffective assistance of appellate counsel excusing procedural default on a habeas petition, and additional decisional law in this area could have benefited litigants.  The decision provides important instruction to the defense bar, the government and the district courts alike regarding a defendant’s constitutional right to be present during critical stages of the proceedings against him—an instruction that perhaps would have reached a broader audience had it been included in a precedential order.

-By Jacqueline L. Bonneau and Harry Sandick