United States District Court, D. Connecticut
RULING RE: MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DOC. NO.
C. HALL UNITED STATES DISTRICT JUDGE
petitioner, Andrew Zayac, filed a Motion to Vacate, Set Aside
or Correct Sentence pursuant to section 2255 of title 28 of
the United States Code on June 17, 2016. See Motion
to Vacate, Set Aside or Correct Sentence (“Mot. to
Vacate”) (Doc. No. 1). Zayac argues that his trial
counsel was ineffective for failing to advise him of
statements made by the court during a charge conference
regarding the requested duress instruction and for failing to
call witnesses to rebut the government's theory of
motive. See Memorandum of Law in Support of Motion
to Vacate (“Mem. in Supp.”) (Doc. No. 1-2) at 2.
He also argues that his right to be present at a critical
stage in the proceeding was violated because he was absent
from the charge conference where the court discussed the
potential impact of his testimony on whether a duress
instruction would be given. See id. The respondent,
the United States (“the Government”), opposes
Zayac's Motion. See Respondent's Memorandum
of Law in Opposition to Petitioner's § 2255 Motion
(“Mem. in Opp.”) (Doc. No. 11)
reasons set forth below, Zayac's Motion to Vacate is
December 16, 2010, a federal grand jury returned the Second
Superseding Indictment, charging Andrew Zayac and Heriberto
Gonzalez with the following counts: kidnapping resulting in
death (Count One), premeditated murder (Count Two), felony
murder (Count Three), interference with commerce by robbery
(Count Four), possession of marijuana with intent to
distribute (Count Five), use of a firearm during and in
relation to a narcotics trafficking offense (Count Six),
conspiracy to use or possess a firearm in furtherance of
crimes of violence and a narcotics trafficking offense (Count
Seven), destruction/concealment of evidence (Counts Eight,
Nine, and Ten), and conspiracy to destroy/conceal evidence
(Count Eleven). See United States v. Zayac, No.
3:09-CR-00136-JCH-1 (“Zayac Criminal Docket”),
Second Superseding Indictment (Doc. No. 158).
for the case began on July 14, 2011. See Zayac
Criminal Docket, Minute Entry (Doc. No. 253). Zayac's
counsel at trial included Bruce D. Koffsky and Martin J.
Minnella. The court has previously described the trial
evidence against Zayac as follows:
At trial, the government presented evidence to support the
following facts. Zayac arranged a transaction with the
victim, Edward Rivera, whereby Zayac would take delivery of
approximately 70 pounds of marijuana. . . . On February 8,
2009, Zayac drove a blue Jeep Grand Cherokee to pick up
Rivera from his apartment in the Bronx at approximately
11:42pm. Rivera transported the marijuana in two duffle bags,
which were loaded into Zayac's Jeep. One witness
testified that he saw silhouettes or shadows of people in
both the driver and passenger side of the vehicle when Rivera
got into the car. Rivera was shot twice, and died, in the
backseat of Zayac's Jeep. Zayac, with Gonzalez as a
passenger, then drove the Jeep to the Padanaram Reservoir in
Danbury, CT. Rivera's body was removed from the backseat
of the Jeep and concealed at the bottom of a steep hill
behind several rocks and trees.
Zayac and Gonzalez then drove to the New Rochelle residence
of Zayac's girlfriend, Stephanie DiBuono, where Zayac
removed the marijuana and stored it in DiBuono's
Cadillac. Zayac and Gonzalez then drove to Gonzalez's
apartment in the Bronx and picked up Gonzalez's
Mercedes-Benz. Gonzalez and Zayac drove to a gas station to
purchase gasoline, and set Zayac's Jeep on fire, torching
all evidence in the Jeep and burning both defendants. . . .
United States v. Zayac, No. 3:09-CR-00136 (JCH),
2011 WL 5238823, at *1 (D. Conn. Nov. 1, 2011).
trial, Zayac's defense “focused on his attempt to
pin responsibility for the crimes on Gonzalez.”
United States v. Zayac, 765 F.3d 112, 116 (2d Cir.
2014). Zayac did not testify at trial. See id.;
Zayac Criminal Docket, Transcript Day 4 (“Day 4
Tr.”) (Doc. No. 291) at 1200-01. However, his versions
of what happened was presented at trial through government
witnesses, who recounted what Zayac had told investigators on
four different occasions. See Zayac, 765 F.3d at
116. His account of the events changed each time.
Id. The Second Circuit described Zayac's
version of the events as follows:
According to Zayac, sometime after Rivera got into the Jeep,
Gonzalez produced a small semiautomatic handgun from his
backpack, along with some zip ties. Gonzalez then ordered
Rivera at gunpoint to put the zip ties on himself. Moments
later, as Zayac drove the vehicle northward, Gonzalez shot
Rivera in the chest. Gonzalez then told Zayac to be happy it
was not him who was shot. Once near the Padanaram Reservoir
in Danbury, Zayac turned down a secluded road and stopped on
the shoulder. Gonzalez insisted that Zayac help him pull
Rivera's body from the car. Zayac told investigators that
he then returned to the driver's seat of the Jeep while
Gonzalez disappeared down the roadside hill with the body for
several minutes. When Gonzalez reappeared, the two men drove
back to New York, where they proceeded to stow the marijuana
at the home of Zayac's girlfriend before burning the
on this version of the events, Mr. Koffsky requested, on
Zayac's behalf, a duress charge as to Count One for
kidnapping, Count Four for robbery, and Counts Eight through
Eleven relating to destruction or concealment of evidence.
See Zayac Criminal Docket, Transcript Day 5
(“Day 5 Tr.”) (Doc. No. 292) at 1207. To invoke a
duress defense, Zayac had to present evidence of “(1) a
threat of force directed at the time of the defendant's
conduct; (2) a threat sufficient to induce a well-founded
fear of impending death or serious bodily injury; and (3) a
lack of a reasonable opportunity to escape harm other than by
engaging in the illegal activity.” Zayac, 2011
WL 5238823, at *4 (quoting United States v.
Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005)). The court
declined to instruct the jury on duress in Zayac's case
because it found that, even accepting Zayac's versions of
the events told through the government's witnesses, Zayac
had a reasonable opportunity to escape. See Day 5
Tr. at 1214, 1241-43. Specifically, the court found that
Zayac could have escaped when he was in the car alone at the
top of the embankment while Gonzalez was disposing of the
body. See id. at 1214-16.
November 22, 2011, the jury convicted Zayac of Counts One
(kidnapping), Three (felony murder), Four (robbery), Five
(possession with intent to distribute marijuana), Seven
(conspiracy to use or possess a firearm in furtherance of
violent crimes or a narcotics trafficking offense), Eight to
Ten (destruction/concealment of evidence), and Eleven
(conspiracy to destroy/conceal evidence). See Zayac
Criminal Docket, Jury Verdict (Doc. No. 269). Zayac was found
not guilty of Count Two for premeditated
murder. See id. Zayac then filed a Motion
for Acquittal and a Motion for a New trial on August 2, 2011.
See Zayac Criminal Docket, Motion for a New Trial
and Motion for Judgment of Acquittal (Doc. No. 274). He
argued, inter alia, that the court erred in not
sending the duress charge to the jury. See Zayac
Criminal Docket, Memorandum in Support of Motion for
Acquittal and for New Trial (Doc. No. 285) at 10-13. The
court denied the Motion. See Zayac, 2011 WL 5238823.
November 21, 2011, the court sentenced Zayac to life
imprisonment on Counts One and Three; 20 years each on Counts
Four, Seven, Eight, Nine, and Ten; and five years on Counts
Five and Eleven, all to run concurrently. See Zayac
Criminal Docket, Judgment (Doc. No. 324).
November 23, 2011, Zayac appealed the judgment to the Second
Circuit. See Zayac Criminal Docket, Notice of Appeal
(Doc. No. 326). He again argued, inter alia, that
the court erred in denying his request for a duress
instruction. See Zayac, 765 F.3d at 119-20. The
Second Circuit affirmed the court's judgment, holding
that “no rational juror could have found that Zayac
lacked a reasonable opportunity to escape, ” and that
this opportunity occurred before the kidnapping and robbery
were complete. Id. at 121-23.
the Supreme Court decided Yates v. United States,
135 S.Ct. 1074 (2015), the parties filed a Joint Motion to
Dismiss Counts Eight Through Eleven, which the court granted.
See Zayac Criminal Docket, Joint Motion to Dismiss
Counts Eight Through Eleven (Doc. No. 349); Zayac Criminal
Docket, Order Granting Motion to Dismiss (Doc. No. 350).
filed the current Motion to Vacate on June 17, 2016,
requesting the court to vacate his conviction and grant him a
new trial. See Mot. to Vacate. He raises two claims
of ineffective assistance of counsel and one claim of
violation of his right to be present at a critical stage of
the proceedings. See Mem. in Supp.
collateral challenges are in tension with the society's
strong interest in the finality of criminal convictions, the
courts have established rules that make it more difficult for
a defendant to upset a conviction by collateral, as opposed
to direct, attack.” Yick Man Mui v. United
States, 614 F.3d 50, 53 (2d Cir. 2010) (internal
quotation marks omitted). Section 2255 of title 28 of the
United States Code permits a federal prisoner to move to
vacate, set aside, or correct his sentence “upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a) (2016). Therefore, relief is available
“under § 2255 only for a constitutional error, a
lack of jurisdiction in the sentencing court, or an error of
law that constitutes a fundamental defect which inherently
results in a complete miscarriage of justice.”
Cuoco v. United States, 208 F.3d 27, 30 (2d Cir.
2000) (quoting United States v. Bokun, 73 F.3d 8, 12
(2d Cir. 1995)).
petitioner bears the burden of proving he is entitled to
relief by a preponderance of the evidence. See Skaftouros
v. United States, 667 F.3d 144, 158 (2d Cir. 2011). In
deciding a section 2255 motion, the court must hold a
hearing, “unless the motion and the files and records
of the case conclusively show that the plaintiff is entitled
to no relief.” 28 U.S.C. § 2255(b). However, a
petitioner is not automatically entitled to a hearing, and no
hearing is required where a petitioner's
“allegations are ‘vague, conclusory, or palpably
incredible.'” Gonzalez v. United States,
722 F.3d 118, 130 (2d Cir. 2013) (quoting Machibroda v.
United States, 368 U.S. 487, 495 (1962)). To determine
whether a prisoner is entitled to an evidentiary hearing on
the motion, the court looks “primarily to the affidavit
or other evidence proffered in support of the application in
order to determine whether, if the evidence should be offered
at a hearing, it would be admissible proof entitling the
petitioner to relief.” LoCascio v. United
States, 395 F.3d 51, 57 (2d Cir.2005) (quoting Dalli
v. United States, 491 F.2d 758, 760 (2d Cir.1974)).
“The petitioner must set forth specific facts which he
is in a position to establish by competent evidence.”
Id. (quoting Dalli, 491 F.2d at 761).
Motion, Zayac presents three grounds for vacating his
sentence. First, Zayac argues that his Fifth Amendment due
process and confrontation rights, as well as his Sixth
Amendment right to a fair trial, were violated because he was
not present at a charge conference in which the court
expressed that it could not make a decision with respect to
the duress charge until after hearing his testimony.
See Mem. in Supp. at 2. Second, he argues that trial
counsel rendered ineffective assistance in violation of the
Sixth Amendment right to counsel by failing to inform him of
those statements made by the court during the charge
conference. See id. Zayac argues that the statement
indicated that the court's decision whether or not to
instruct the jury on duress depended on his testimony, and
that, had he been aware of the court's view, he would
have testified at trial. See id. Finally, he argues
that trial counsel was also ineffective for failing to call
three available witnesses to rebut the government's
theory of his motive. See id.
Right To Be Present at a Critical Stage
argues that his constitutional right to be present at a
critical stage of the trial was violated because he was
absent during a charge conference in which the court made
“rulings bearing on Mr. Zayac's Fifth Amendment
right to testify.” Mem. in Supp. at 13. Specifically,
Zayac argues that he had a right to be present “to hear
the Court's view that a duress instruction could more
likely be granted if he testified.” Id. At the
charge conference, which occurred before the government
rested, Mr. Koffsky indicated that the defense would be
requesting a jury instruction on duress. See Zayac
Criminal Docket, Transcript Day 3 (“Day 3 Tr.”)
at 779. The court responded that it would have to hear
Zayac's testimony before determining whether or not
sufficient evidence had been raised to permit a duress charge
to go to the jury. See Day 3 Tr. at 791-807.
Zayac's Motion characterizes the court's statements
as a “preliminary ruling.” See Mem. in
Supp. at 5, 7.
response, the Government makes three arguments. First, the
Government contends that Zayac did not have a due process
right to be present at the charge conference. See
Mem. in Opp. at 15-17. Second, the Government argues that
Zayac cannot show actual prejudice. See id. at 18.
Finally, the Government argues that Zayac waived this claim
because he failed to raise it on direct appeal. See
id. at 17-18. The court agrees with the Government's
first argument that Zayac's due process rights were not
violated by his absence at the charge conference, and
therefore, it is not necessary for the court to address the
Government's remaining two arguments.
Process Clause protects a criminal defendant's right to
be present “at any stage that is critical to the
outcome of the trial and if his presence would contribute to
the fairness of trial.” Monroe v. Kuhlman, 433
F.3d 236, 246 (2d Cir. 2006); see also Jones v.
Murphy, No. 3:10-CV-49, 2010 WL 3829129, at *9 (D. Conn.
Sept. 21, 2010), aff'd, 694 F.3d 225 (2d Cir.
2012). The Supreme Court has defined a critical stage as one
in which the defendant's “presence has a relation,
reasonably substantial, to the fulness [sic] of his
opportunity to defend against the charge.” United
States v. Gagnon, 470 U.S. 522, 526 (1985). Thus, due
process requires the defendant's presence “to the
extent that a fair and just hearing would be thwarted by his
absence, and to that extent only.” Id. The
defendant's presence is not required “when presence
would be useless, or the benefit but a shadow.”
Kentucky v. Stincer, 482 U.S. 730, 745 (1987)
(quoting Snyder v. Massachusetts, 291 U.S. 97,
Second Circuit has held that proceedings involving only
questions of law are not critical stages triggering the
defendant's due process rights. See United States v.
Rubin, 37 F.3d 49, 54 (2d Cir. 1994); United States
v. Rivera, 22 F.3d 430, 438-49 (2d Cir. 1994); Fed. R.
Crim. P. 43(b)(3) (stating that the “defendant need not
be present” if “[t]he proceeding involves only a
conference or hearing on a question of law”). Following
this rule, the Second Circuit has made clear that the Due
Process Clause does not require the defendant's presence
“at a charge conference dealing only with the legal
questions involved in formulating a proper set of jury
instructions.” Rubin, 37 F.3d at 54; see
also United States v. Greenidge, 199 F.3d 1324 (Table),
at *1 (2d Cir. 1999); Salley v. Graham, No. 07CIV455
(GEL), 2008 WL 818691, at *4 (S.D.N.Y. Mar. 27, 2008);
Coke v. Superintendent, Green Haven Corr. Facility,
No. 06-CV-811 (MAT), 2010 WL 475274, at *5 (W.D.N.Y. Feb. 5,
2010). This is because “[t]he content of the
instructions to be given to the jury is purely a legal
matter, and a conference to discuss those instructions is
thus a conference on a question of law at which a defendant
need not be present.” Rivera, 22 F.3d at
Zayac's argument turns on his absence from a charge
conference, the court finds that he had no right under the
Due Process Clause to be present at the conference and,
therefore, that his due process rights were not violated.
makes two attempts to argue that a due process right can
require a defendant's presence at a charge conference.
First, he relies on Fourth Circuit precedent in United
States v. Rhodes, 32 F.3d 867 (4th Cir. 1994).
See Mem. in Supp. at 12-13. He argues that
Rhodes interpreted Supreme Court precedent in
Rogers v. United States, 422 U.S. 35, 39-40 (1975),
to indicate that the defendant's absence from discussion
on jury instructions can implicate his due process rights.
See Mem. in Supp. at 12-13 (quoting Rhodes,
32 F.3d at 873 (“Gregorio[‘s holding]
that the defendant has ...