Petition for Writ of Certiorari — Carlos Javier Figueroa, Petitioner v. United States

No. 26-____

__________________________________________________________________

__________________________________________________________________

In the

Supreme Court of the United States

Carlos Javier Figueroa,

Petitioner,

v.

United States of America,

Respondent.

______________________________________________

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Second Circuit

__________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________________________________________

Yuanchung Lee

Counsel of Record

Federal Defenders of New York, Inc.

Appeals Bureau

52 Duane Street, 10th Floor

New York, New York 10007

Yuanchung_lee@fd.org

(212) 417–8742

Counsel for Petitioner

QUESTION PRESENTED

In McCoy v. Louisiana, 584 U.S. 414 (2018), this Court held that (1)

the Sixth Amendment guarantees a criminal defendant the autonomy to

decide the objective of his defense, including maintaining innocence at

trial despite overwhelming evidence of guilt; and (2) counsel who

overrides that decision by conceding defendant’s guilt commits structural

error requiring reversal. This Court rejected counsel's justification that

he conceded defendant’s guilt because he believed the innocence claim

was false or incredible in light of the evidence, holding that counsel's

belief in his client’s guilt does not authorize counsel to override a

defendant’s choice to pursue innocence at trial.

The question presented is:

Whether counsel violates the Sixth Amendment when counsel

overrides the defendant's express request to call a witness he identifies

as essential to his innocence defense, on the ground that the witness

would commit perjury if called -- even though counsel hadn’t spoken to

the witness -- because counsel believed the defendant was guilty.

i

PARTIES TO THE PROCEEDING

Petitioner is Carlos Javier Figueroa, also known as "Javi" and "Big

Bro," defendant-appellant below.

Respondent is the United States of America.

RELATED PROCEEDINGS

United States v. Figueroa, No. 18-cr-6094 (W.D.N.Y.) (judgment

entered May 6, 2022).

United States v. Poncedeleon, No. 22-1062-cr (2d Cir.) (summary

order issued Aug. 11, 2025).

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................................................... i

PARTIES TO THE PROCEEDING ........................................................... ii

RELATED PROCEEDINGS ...................................................................... ii

TABLE OF CONTENTS ...........................................................................iii

TABLE OF AUTHORITIES ....................................................................... v

OPINION AND ORDER BELOW .............................................................. 1

JURISDICTION ......................................................................................... 1

RELEVANT STATUTORY PROVISIONS ................................................ 2

STATEMENT OF THE CASE ................................................................... 2

A. Introduction ....................................................................................... 2

B. The case against Figueroa ................................................................ 4

C. Vacca repeatedly tells the court that Figueroa is not credible ....... 6

D. Vacca refuses to call an exculpatory witness because he

believes Figueroa is guilty ................................................................ 7

E. The Second Circuit removes Vacca and refers him for sanctions ... 8

F. The Second Circuit’s decision ........................................................... 9

REASONS FOR GRANTING THE PETITION ...................................... 10

iii

I.

Counsel must abide by the defendant’s choice to maintain

innocence at trial, even where there is overwhelming evidence

of guilt. ............................................................................................. 12

II. The lower courts are divided on McCoy's scope. ............................ 13

III. The question presented is exceptionally important....................... 17

IV. The decision below is wrong. .......................................................... 19

A. Vacca’s refusal to call Poncedeleon eviscerated Figueroa’s

goal of maintaining innocence. .................................................... 20

B. Vacca’s reason for not calling Poncedeleon was rejected by

McCoy............................................................................................ 22

C. The Second Circuit's approach permits easy circumvention of

McCoy............................................................................................ 23

CONCLUSION ......................................................................................... 25

iv

TABLE OF AUTHORITIES

Cases

Page(s)

McCoy v. Louisiana,

584 U.S. 414 (2018) ........................................................................ passim

People v. Bloom,

508 P.3d 737 (Cal. 2022) ........................................................................ 17

People v. Flores,

246 Cal. Rptr. 3d 77 (Cal. Ct. App. 2019) ............................................. 17

State v. Crump,

848 S.E.2d 501 (N.C. Ct. App. 2020) ..................................................... 15

Thompson v. United States,

826 F. App’x 721 (11th Cir. 2020) ......................................................... 15

United States v. Figueroa,

2025 WL 2301663 (2d Cir. Aug. 11, 2025) .............................................. 1

United States v. Lancaster,

2021 WL 1811735 (Army Ct. Crim. App. May 6, 2021) ....................... 15

United States v. Read,

918 F.3d 712 (9th Cir. 2019)...................................................... 13, 15, 16

United States v. Rosemond,

958 F.3d 111 (2d Cir. 2020) ......................................................... 4, 14, 15

Yoney v. State,

962 N.W.2d 617 (N.D. 2021) .................................................................. 15

v

Statutes

18 U.S.C. § 924(c)........................................................................................ 4

18 U.S.C. § 3231.......................................................................................... 1

21 U.S.C. § 841(a) ....................................................................................... 4

21 U.S.C. § 841(b)(1)(A) .............................................................................. 4

21 U.S.C. § 846............................................................................................ 4

21 U.S.C. § 848(e)(1)(A) .............................................................................. 4

28 U.S.C. § 1254(1) ..................................................................................... 1

28 U.S.C. § 1291.......................................................................................... 1

vi

OPINION AND ORDER BELOW

The summary order of the United States Court of Appeals for the

Second Circuit is unreported but available at 2025 WL 2301663 (2d Cir.

Aug. 11, 2025) and appears at Pet. App. 001-004. The Circuit denied

rehearing without opinion.

JURISDICTION

The district court had jurisdiction under 18 U.S.C. § 3231. The

Second Circuit had jurisdiction under 28 U.S.C. § 1291. It issued its

decision on August 11, 2025.

Following a timely request for extension, petitioner timely

petitioned the Second Circuit for rehearing on September 30, 2025. The

Circuit denied rehearing without comment on October 28, 2025. Ninety

days from that date is January 26, 2026.

This Court has jurisdiction under 28 U.S.C. § 1254(1). This petition,

filed January 23, 2026, is timely under Supreme Court Rule 13.1.

1

RELEVANT STATUTORY PROVISIONS

The Sixth Amendment to the United States Constitution provides,

in relevant part: "In all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his defence."

STATEMENT OF THE CASE

A. Introduction

Petitioner Carlos Figueroa was convicted after trial of drug

conspiracy, using a firearm, and murder. He is serving a life sentence.

Figueroa has steadfastly maintained his innocence since his 2018

arrest. Paul Vacca was his lawyer for most of that time.

The Second Circuit later removed Vacca and referred him to its

Grievance Panel for sanctions due to misconduct in this case -- he filed a

brief for Figueroa almost entirely plagiarized from a brief filed by another

lawyer in a separate case for a different defendant, and then refused to

explain his misconduct.

New counsel argued that Vacca’s disregard for Figueroa began

earlier, while representing him in the district court. Vacca repeatedly

2

disparaged Figueroa as a liar, demonstrated ignorance of decades-old

law, and failed to make viable arguments at critical junctures.

In particular, Vacca rejected Figueroa’s request to call a witness

whom he identified as critical to his defense of innocence -- co-defendant

Leitscha Poncedeleon, who wanted to testify that the Government's

cooperating witnesses were lying and had been pressured to testify

falsely against Figueroa. Vacca admitted that he hadn’t spoken to

Poncedeleon, but nonetheless told the court, "I don't want to call her as a

witness because if she does, she's going to lie."

Vacca rested without calling a witness. The jury convicted

Figueroa.

A panel of the Second Circuit affirmed, rejecting Figueroa’s

argument that Vacca’s unilateral refusal to call Poncedeleon deprived

him of his Sixth Amendment autonomy right to maintain innocence.

McCoy was not implicated, the Circuit said, because "the decision to call

a witness rests within the province of the lawyer, who is trained to make

thoughtful assessments as to whether a witness would be potentially

perjurious." Pet. App. 002-003.

3

The panel followed the Second Circuit’s narrow reading of McCoy

as applying only when defense counsel concedes the defendant’s guilt to

the jury. E.g., United States v. Rosemond, 958 F.3d 111, 122-23 (2d Cir.

2020) (counsel may concede that defendant committed the actus reus of

the offense without violating McCoy).

B. The case against Figueroa

In January 2018, police arrested Figueroa and seven co-defendants,

accusing him of heading a drug-trafficking organization based in

Rochester, New York, responsible for distributing kilogram quantities of

cocaine and heroin. A superseding indictment charged him with: (1)

conspiracy to distribute cocaine and heroin, in violation of 21 U.S.C. §§

846 and 841(a), (b)(1)(A); (2) possessing and discharging a firearm during

and in relation to the drug conspiracy, in violation of 18 U.S.C. § 924(c);

and (3) murdering Walter Ross while engaged in the drug conspiracy, in

violation of 21 U.S.C. § 848(e)(1)(A).

The district court severed Figueroa's case from that of co-defendant

Xavier Torres. He was tried before a Rochester jury from April to June

2021.

4

The Government presented a strong case against Figueroa over the

6-week trial, offering multiple kinds of evidence contradicting his claim

that he was not a drug dealer and did not possess firearms. The

prosecution offered physical evidence seized from premises controlled by

him, including multiple kilograms of cocaine and heroin, several hundred

thousand dollars in cash, and several firearms; wiretap evidence

recording Figueroa’s phone conversations with co-conspirators about

distributing drugs; video evidence from surveillance cameras mounted

near Figueroa’s residence showing his activities; and testimony from at

least four co-conspirators who cooperated with the Government,

including Figueroa’s older brother Roberto. The cooperators testified, in

accordance with the physical, wiretap, and video evidence, that Figueroa

headed a drug business and possessed firearms.

However, the only evidence that Figueroa was responsible for

murdering Walter Ross came from the killer himself -- co-defendant

Carmona-Cruz. After he was sentenced to 30 years in prison, CarmonaCruz turned government’s witness, eventually telling Figueroa’s jury

that he shot Ross on Figueroa’s order.

5

C. Vacca repeatedly tells the court that Figueroa is not

credible

Vacca repeatedly disparaged Figueroa as a liar to the district court.

At a pretrial conference in December 2020, Petitioner complained to the

court that "he has been trying to communicate with his attorney, but his

attorney is not communicating with him." Vacca contradicted him:

"Judge, I speak to him at least once a week, sometimes two or three times

a week." The court accepted Vacca's version.

During trial, as the court read a party stipulation regarding the

murder victim's identity and cause of death, Figueroa reacted with visible

displeasure. When the court excused the jury and asked what the

problem was, Figueroa said he had not agreed to the stipulation: "I said

no from the very beginning, no stipulation, no stipulation of any kind at

all. None."

Vacca contradicted him, claiming Petitioner had agreed to the

stipulation twice, including just "this morning." Figueroa protested, "I'm

not lying," but the court sided with Vacca.

6

At sentencing, when Petitioner said he had never been told about a

Probation interview for the presentence report, Vacca contradicted him

once more, and the court again took Vacca's side. A.344-46.

D. Vacca refuses to call an exculpatory witness because he

believes Figueroa is guilty

After the Government rested, the court asked Figueroa whether he

intended to testify. He said he did not, but wanted to call a witness for

his defense.

Vacca told the court that this witness was Leitscha Poncedeleon,

Figueroa’s co-defendant (and paramour) who had pleaded guilty to drug

distribution and was serving her sentence on home confinement.

Poncedeleon would have testified that "the cooperating witnesses

[against Figueroa] are lying and . . . [have been] pressured [by the

Government] to testify" falsely, and that "she's been trying to get ahold

of [Vacca] so she can testify in the case."

Vacca told the court that Poncedeleon was "outside the courtroom"

at the start of trial, but "she never contacted me." Thus, he "hadn't spoken

to her."

7

Vacca nonetheless refused to call Poncedeleon. He told the court:

“I don't want to call her as a witness because if she does, she's going to

lie." Vacca did not explain how he knew this, since he “hadn’t spoken to

her.”

The defense thus rested without calling a witness.

The jury convicted Figueroa on all counts. The district court

sentenced him to life imprisonment on the drug and murder counts, to

run concurrently, followed by a consecutive 25-year sentence on the

firearms count.

E. The Second Circuit removes Vacca and refers him for

sanctions

Vacca continued as Figueroa’s counsel on appeal to the Second

Circuit. In that capacity, he filed a brief that led the Second Circuit to

eject him from this case.

Vacca stole nearly all of that brief from a brief someone else

previously filed on behalf of co-defendant Torres. But the two men were

tried on different charges, convicted after separate trials on different

evidence, and sentenced separately to different penalties. As a result,

8

Vacca’s brief raised arguments irrelevant to Figueroa. It also failed to

contest his murder conviction, because Torres wasn=t charged with

murder and thus Vacca had nothing to steal.

Vacca then stonewalled the Circuit, repeatedly ignoring its

directive to explain his filing. Hearing nothing from Vacca, the Circuit

removed him, referred him for sanctions, and assigned new counsel for

Figueroa.

F. The Second Circuit’s decision

New counsel argued inter alia that Vacca's refusal to call

Poncedeleon, overriding Figueroa’s explicit request, violated the

defendant’s Sixth Amendment right to autonomy under McCoy v.

Louisiana, 584 U.S. 414 (2018) -- his right "to decide that the objective of

[his] defense is to assert innocence." Id. at 422. This structural error

warranted a new trial.

A panel of the Second Circuit affirmed. The panel acknowledged

that Petitioner "wanted to call Poncedeleon as a defense witness" and

that "Vacca apparently concluded that her testimony would be

untruthful." Pet. App. 002. But "Vacca did not violate Figueroa's right to

9

autonomy because the decision to call a witness rests within the province

of the lawyer, who is trained to make thoughtful assessments as to

whether a witness would be potentially perjurious or beneficial to the

defense's case." Pet. App. 002-003. Vacca's refusal was a "strategic

decision well within the bounds of professional representation, and one

that appellate courts are ill-suited to second-guess." Pet. App. 002

(internal quotation marks omitted).

Figueroa timely sought panel and en banc rehearing. The Circuit

denied rehearing without explanation.

REASONS FOR GRANTING THE PETITION

This case presents a question of exceptional importance that has

divided the lower courts: whether McCoy v. Louisiana's guarantee of a

defendant’s autonomy over the objective of the defense can be

circumvented when counsel, rather than expressly conceding guilt to the

jury, achieves the same result by otherwise undercutting the defendant’s

goal of maintaining innocence, such as by refusing to present the

innocence defense.

10

The Second Circuit held that counsel's refusal to call a witness

whom the defendant identified as essential to his innocence defense —

without ever speaking to the witness — was a "strategic decision" within

counsel's "province" to make "thoughtful assessments as to whether a

witness would be potentially perjurious." Pet. App. 003. That holding

eviscerates McCoy by permitting counsel to effectively nullify a

defendant's autonomy right based on nothing more than counsel's belief

that the defendant is guilty, in light of the prosecution’s evidence. It

conflicts with decisions of other courts that have applied McCoy to

counsel conduct tantamount to overriding the defendant's chosen

objective even without an explicit admission of guilt.

The Court should grant the writ to resolve this split among the

lower courts. Their disagreement on McCoy’s scope is longstanding. This

Court’s intervention is necessary to ensure uniformity.

Moreover, the Second Circuit got it wrong. Counsel’s refusal to call

the only witness that Figueroa wanted to call to maintain his innocence

defense, solely because he believed in the defendant’s guilt, violates the

Sixth Amendment.

11

I.

Counsel must abide by the defendant’s choice to maintain

innocence at trial, even where there is overwhelming

evidence of guilt.

Prior to McCoy, only four decisions in a criminal case belonged to

the defendant alone and not to counsel – “whether to plead guilty, waive

the right to a jury trial, testify in one’s own behalf, and forego an appeal.”

McCoy, 584 U.S. at 422. McCoy adds a fifth to this rarified list -- the

decision to maintain innocence as a defense at trial.

"Autonomy to decide that the objective of the defense is to assert

innocence" is “reserved for the client.” Id. "When a client expressly

asserts that the objective of 'his defense' is to maintain innocence of the

charged criminal acts, his lawyer must abide by that objective and may

not override it by conceding guilt." Id. at 423 (emphasis in original). A

“[v]iolation of a defendant’s Sixth Amendment-secured autonomy” is

“structural error . . . not subject to harmless-error review.” Id. at 427.

This is so even where evidence of guilt is prodigious and counsel

reasonably believes that conceding guilt leads to the best outcome. A

defendant may wish to maintain innocence because he “wish[es] to avoid,

above all else, the opprobrium that comes with admitting” that he

12

committed heinous acts. Id. at 423. Or a defendant may simply value “the

possibility of an acquittal, . . however small . . . [or] miniscule,” over the

more certain consequences of admitting guilt. Id.

McCoy rejected the argument that counsel's belief in the

defendant's guilt, even if warranted “in view of the prosecution’s

evidence,” justified overriding the defendant's desire to maintain

innocence. Id. at 425. “It is for [the defendant], not counsel, to decide" the

objective of the defense, even when counsel believes maintaining

innocence is futile or unwise. Id. at 423. As the Ninth Circuit

summarized, “[T]he decision whether to admit guilt, even in the face of

overwhelming evidence, is one of the choices that must remain with the

defendant.” United States v. Read, 918 F.3d 712, 720 (9th Cir. 2019).

II.

The lower courts are divided on McCoy's scope.

Since McCoy, several circuits and state courts of last resort have

divided sharply over whether its holding extends beyond counsel

expressly telling the jury that the defendant is guilty.

13

Several courts, including the Second Circuit, have confined McCoy

to its facts, holding that only an express concession of guilt by counsel to

the jury triggers McCoy's protection.

In the decision below, the Second Circuit held that McCoy does not

apply to counsel's refusal to call a witness necessary to the defendant’s

innocence defense. McCoy was irrelevant even if this was the only

witness Figueroa wanted to call, the court claimed, because "the decision

to call a witness rests within the province of the lawyer, who is trained

to make thoughtful assessments as to whether a witness would be

potentially perjurious or beneficial to the defense's case." Pet. App. 003.

This followed from the Second Circuit decision in United States v.

Rosemond, 958 F.3d 111 (2d Cir. 2020), which declined to extend McCoy

to counsel's decision to concede, over the defendant’s objection in a

murder-for-hire prosecution, that defendant hired the hitmen, but only

to injure and not kill the victim. This was “reasonable,” the court said,

because “there [was] ‘overwhelming evidence in the case.” Id. at 121.

“Conceding an element of a crime while contesting the other

elements falls within the ambit of trial strategy.” Id. at 122. “We read

14

McCoy as limited to a defendant preventing his attorney from admitting

he is guilty of the crime with which he is charged.” Id. at 123.

Several courts adopt this position. Thompson v. United States, 826

F. App’x 721, 727-28 (11th Cir. 2020) (McCoy not violated when counsel

conceded in Hobbs Act prosecution that his client committed the robbery,

but argued that the interstate-commerce element was not met); United

States v. Lancaster, 2021 WL 1811735, at *4 - *7 (Army Ct. Crim. App.

May 6, 2021) (citing and follows Rosemond); State v. Crump, 848 S.E.2d

501, 507-08 (N.C. Ct. App. 2020) (same); Yoney v. State, 962 N.W.2d 617,

622 (N.D. 2021) (same). As the North Dakota Supreme Court puts it,

“when there is overwhelming evidence against a defendant, counsel may

make certain concessions without prejudicing the defendant.” Id.

Other courts reject this narrow reading of McCoy, holding that

McCoy applies whenever counsel's actions effectively override the

defendant's chosen objective, regardless of whether counsel technically

concedes the defendant’s guilt.

The Ninth Circuit led the way in Read, 918 F.3d 712 (9th Cir. 2019).

There, counsel pursued an insanity defense over the defendant's

15

objection. The defendant wanted to maintain complete innocence; counsel

instead conceded that the defendant committed the acts but argued he

was not criminally responsible due to mental illness. The Ninth Circuit

held this violated the defendant’s autonomy under McCoy. Although

counsel never said "my client is guilty," pursuing the insanity defense “is

tantamount to a concession of guilt,” contradicting the defendant’s stated

objective. Id. at 720.

McCoy's "logic extends to any situation in which counsel takes

actions that the defendant has expressly objected to and that effectively

concede the defendant's guilt with respect to the actus reus." Id. Counsel

must abide by the defendant’s choice to maintain innocence, however

“bizarre” it may appear, because the defendant’s objective at trial –

something that is his choice alone -- may be “to avoid contradicting his

own deeply personal belief” in his innocence or simply to “avoid . . . the

social stigma” of admitting either that he committed a terrible act or is

mentally ill. Id. at 721.

“[E]ven in the face of overwhelming evidence, the choice[] [to

maintain innocence] must remain with the defendant.” Id. at 720. Other

16

courts agree with the Ninth Circuit that counsel violates the Sixth

Amendment by conceding that defendant committed the actus reus, even

if counsel contests the proof on mens rea, People v. Flores, 246 Cal. Rptr.

3d 77, 85-86 (Cal. Ct. App. 2019), or by conceding defendant’s guilt on a

lesser-included offense, even while contesting guilt on the greater

offense, People v. Bloom, 508 P.3d 737, 761 (Cal. 2022).

***

This split is mature, entrenched, and outcome-determinative.

Under the Ninth Circuit's approach in Read, Figueroa would be entitled

to a new trial. Vacca's refusal to present the innocence defense Figueroa

wanted from the start of this case, based on counsel's own belief in his

client’s guilt, overrode Figueroa’s Sixth Amendment right and constitutes

structural error.

III. The question presented is exceptionally important

McCoy ruled that the Sixth Amendment guarantees a defendant

autonomy to control the objective of his trial: If he chooses to assert

innocence, counsel must accept that decision and pursue that goal,

regardless of counsel’s personal views as to the defendant’s guilt. The

17

right is hollow if counsel can nullify that choice through means short of

an explicit concession of guilt.

The question presented arises regularly. Criminal defendants

routinely identify witnesses they believe will support their claim of

innocence. Defense counsel routinely decline to call some of those

witnesses, often for legitimate strategic reasons -- the witness may be

cumulative, unreliable, or subject to damaging cross-examination. But

sometimes counsel's refusal rests not on strategy but on counsel's belief

– in McCoy and in this case -- that the defendant is guilty and that any

witness who would say otherwise must be lying.

Without this Court's intervention, defendants in such cases will

have no remedy. Courts in the Second Circuit, for instance, will continue

to defer to counsel's "strategic" judgment without examining whether

that judgment was actually strategy, informed by investigation and

evaluation of the evidence, or merely counsel's conclusion that the

defendant was guilty, given the strength of the prosecution’s case.

McCoy protects their right to maintain innocence, defendants are

told, but that protection will extend only to the unusual case where

18

counsel announces to the jury that the defendant is guilty. Counsel who

achieves the same result more subtly -- by refusing to call witnesses,

refusing to investigate, refusing to present a defense -- will be free of

McCoy.

That outcome is inconsistent with the principle that animates

McCoy: "Autonomy to decide that the objective of the defense is to assert

innocence" belongs to the defendant. 584 U.S. at 422. The right to choose

an objective is meaningless without the right to have that objective

pursued. A defendant who is permitted to say "I am innocent" but whose

lawyer refuses to present any evidence of that innocence has been denied

the very autonomy McCoy protects.

IV.

The decision below is wrong.

The Second Circuit's decision cannot be reconciled with McCoy.

What counsel did here is not materially different from what counsel did

in McCoy. Moreover, the justification Vacca offered is precisely the one

McCoy rejected.

19

A. Vacca’s refusal to call Poncedeleon eviscerated

Figueroa’s goal of maintaining innocence.

In McCoy, counsel told the jury his client was guilty. Here, counsel

effectively told the court, on the record, that he believed his client was

guilty. When asked about Poncedeleon, Vacca stated: "I don't want to call

her as a witness because if she does, she's going to lie."

Vacca’s statement is tantamount to a declaration of belief in his

client's guilt. Vacca had never spoken to Poncedeleon. He had no

independent basis to know what she would say. The only way Vacca could

conclude that Poncedeleon would "be lying" by giving exculpatory

testimony is if Vacca had already concluded that Figueroa was guilty:

Because if he was guilty, then anyone who testified that the government's

cooperating witnesses were lying must herself be lying.

This was not an isolated statement. Vacca repeatedly disparaged

Petitioner

as

communication,

a

liar

in

open

contradicting

court,

him

contradicting

about

the

him

stipulation,

about

and

contradicting him about the Probation interview. Vacca's statement

about Poncedeleon was of a piece with his evident disbelief in everything

his client said.

20

Vacca's conclusion that Poncedeleon would "be lying" thus operated

as a statement of his own client’s guilt. He did not say the words "my

client is guilty" to the jury. But he decided that his client was guilty and

acted on that belief by refusing to present the only witness who could

support Figueroa’s innocence defense.

Petitioner did not testify. Poncedeleon was his only opportunity to

maintain his innocence through a live witness.

The functional effect of counsel’s action was the same as in McCoy.

In both cases, counsel's belief in the defendant's guilt led counsel to

override the defendant's choice of maintaining innocence. In McCoy,

counsel expressed that belief by telling the jury his client committed the

crime. Here, counsel expressed that belief by refusing to present evidence

that his client did not commit the crime, while publicly declaring that

any such evidence would be a lie. The method differed but the result was

the same -- the defendant's innocence defense was nullified by his own

lawyer.

21

B. Vacca’s reason for not calling Poncedeleon was rejected

by McCoy

McCoy expressly addressed the argument that counsel's belief in

the falsity of the defendant's position justifies overriding the defendant's

choice. The Court rejected it.

"McCoy's counsel harbored no doubt that McCoy believed what he

was saying." 584 U.S. at 425. Counsel in McCoy was not acting on

information from his client that the client intended to lie. He was acting

on his own judgment that the client's position was false. That judgment,

however reasonable in light of the evidence of guilt, did not justify

overriding the client's choice to maintain innocence.

The same here. Figueroa never told Vacca that Poncedeleon would

lie. He never admitted guilt. Instead, he maintained throughout that he

was innocent and that Poncedeleon could support his innocence by

testifying that the government's cooperating witnesses were lying.

Vacca's conclusion that Poncedeleon would "be lying" rested on his

own belief, given the strength of the Government’s case, that Figueroa

was guilty. This is the same kind of belief that counsel in McCoy held,

22

and that this Court ruled did not justify overriding the defendant's

choice.

C. The Second Circuit's approach permits easy

circumvention of McCoy.

The Second Circuit reduces McCoy to a rule about form rather than

substance. Under the decision below, McCoy is violated only when

counsel says the magic words "my client is guilty" to the jury. Counsel

who achieves the same result through other means escapes constitutional

scrutiny.

That approach makes McCoy trivially easy to circumvent. A lawyer

who believes his client is guilty and wishes to act on that belief need only

avoid an express concession. He can refuse to investigate. He can refuse

to call witnesses. He can refuse to cross-examine. He can refuse to argue

innocence in closing. He can, in short, present no defense at all. So long

as he does not affirmatively tell the jury his client is guilty, the Second

Circuit insulates his conduct from McCoy.

That cannot be right. McCoy rests on the principle that "autonomy

to decide that the objective of the defense is to assert innocence" belongs

to the defendant alone, not counsel. 584 U.S. at 422. The Sixth

23

Amendment right to choose an objective encompasses the right to have

counsel pursue that objective. A defendant whose lawyer refuses to

present any evidence of innocence has not been permitted to "assert

innocence" in a meaningful sense.

The Second Circuit characterized Vacca's witness decision as falling

"within the province of the lawyer." But McCoy draws a clear line

between trial management and the objective of the defense. Counsel

controls "what arguments to pursue, what evidentiary objections to raise,

and what agreements to conclude regarding the admission of evidence."

584 U.S. at 422. But counsel may not "override" the defendant's

"autonomy" to "decide the objective of the defense." Id. at 417.

Vacca's refusal to call Poncedeleon was not trial management. It

was not a tactical assessment that her testimony would be ineffective,

cumulative, or subject to damaging cross-examination. Vacca never spoke

to her; he could not have made any such assessment. His refusal was a

determination that Petitioner's objective of maintaining innocence

should not be pursued because Vacca believed he was guilty.

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That is the decision McCoy reserves to the defendant. Vacca

usurped it. The Constitution requires reversal and a new trial.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

By: /s/ Yuanchung Lee

Yuanchung Lee

Counsel of Record

Federal Defenders of New York, Inc.

Appeals Bureau

52 Duane Street, 10th Floor

New York, NY 10007

(212) 417–8742

yuanchung_lee@fd.org

January 23, 2026

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