11 -37 37 -cr

UnitedStates v. Hay

nes UNI TED STATES COURT OF APPEAL S

FOR THESECOND CI RCUI T SUMMAR

Y ORDER RULING S BY SUM M ARY O RDER DO NOT HA VE PRECEDENT IAL EFFECT. CITAT ION TO A SUM M ARY O RDER FILED ON O R AFTER JA NUARY 1 , 2 00 7, IS PERM ITT ED AND IS GOVERNED BY FEDERAL RULE OF APP ELL ATE PROCEDURE 32 .1 AND THIS CO URT’S LOCAL RULE 32 .1. 1. WHEN CITING

A SUM M ARY O RDER IN A DO CUM ENT FILE D WITH THIS COUR T, A PAR TY M UST CITE EITHER THE FEDERAL APP ENDIX OR AN ELE CTRONIC DATABA SE (WITH THE NOTATION “SUM M ARY O RDER”). A P ARTY CITING A SUM M ARY O RDER M UST SERVE A COPY OF IT ON ANY PARTY NO T REPRESE NTED BY CO UNSEL.
At a stated te rm of the United States Court of A ppeals for the Second Circuit, held at the Thurg ood Marsha ll United States Courthouse, 40 Foley Square, in the City

of Ne w York, on the 14 day of Oc tober, two thousand f ourtee n. t h PRES ENT: ROSEMARY S. P OOL ER,

REENA RAGGI , PETER W . HAL L , Circuit Judges
.

_____________________________________ United States of America,

Appellee , v. 11-3737-c r Emerson Ha

y nes, AKAAnthony

Hay nes, Defendant-

Appellant
.

___ _________________________________ F OR AP P ELL EE: J oseph J. Karaszewski, Assistant United States Attorney for the Wester

n District of Ne w York (Will iam J . Hochul, Jr., United States Attorney , on the brief ), B uffa lo, N.Y. F OR DEF ENDANT-AP P ELL ANT: Emerson Ha y nes, pro se , Buf

falo, N.Y
. Appea l from a judgment of the United States District Court for the Western District ofNew Y ork (Skre tny , C.J. ).

UP ON DUE CONSIDERATION, IT IS HEREB Y ORDERED, ADJUD GED, A ND DECREED that the judg ment of the district cour t is AF F IRMED

. Emerson Ha

y nes, pro se , appea ls a judg ment of the United States District Court for the Western District of Ne w York ( Skretny , C.J. ) ente red on Septe mber 6, 2011, followinga jury verdic t, convictinghim of unlawful use of premises for

the purpose of

manufa cturingand distributing marijuana , in violation of 21 U.S.C. § 856(a)(1), a nd unlawful possession of a firea rm by a fe lon, in violation of 18 U.S.C . § 922(g )(1) . We assume the par ties’ familiarity

with the underlying f

acts, the procedur al history of the c ase, a

nd the issues on appe al. Upon re view of the rec ord, we conclude that the district court prope rly denied Ha

y nes’s pretria l motions seekingto dismi ss the indictment and to suppress evide nce. H ay nes base d his motions on unsupported alleg ations that the grand jury considere d improper e vidence , the prosec ution was vindictive, the Gove rnment’s c onduct was “ outrag eous,” a nd his speedy

trial rights wereviolated. We further conclude that Hay

nes wa s not denied his right to challeng e the validity of the sea

rch w arrant. The O ctober 19, 2009 repor

t and re commendation of the mag istrate judg e re flec ts that his challeng e to the wa rra nt was consider ed and r ejec ted. We also find no support in the rec ord for Hay nes’s c ontentions that the district court ac ted as a “rubbe r stamp” for

the Gover

nment, or that the c ourt colluded with the Gove rnment and standby counsel to violate his rights. With respe ct to Hay

nes’s inef fec tive assistance of counse l claims, those claims should be made in the f

irst instance to the district cour t. See U nited States v. Matos , 905 F.2d 30, 32 ( 2d Cir. 1990). This Court prefe rs to hear ineffe ctive assistanc e cla ims on collateral r eview. See United States v. Doe , 365 F.3d 150, 152 ( 2d Cir. 2004). Although we may decide such cla ims on direc t appea l when their r esolution is “beyond any doubt” or in the intere st of justice, Hay nes has not made suc h a showing
. Matos , 905 F.2d at 32 (internal quotation mar ks omitt ed). We have c onsidered H ay

nes’s re maining a

rguments and find them to be without merit. Acc ording ly , we AF F IRM the judg ment of the district cour t. FOR THECOURT: Catherine O ’Ha g an Wolfe, Clerk



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