Ramchair v. Conway, No. 08-2004 (2d Cir. 2010)
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08-2004-pr Ramchair v. Conway 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 5 (Argued: June 4, 2009; Remanded: June 30, 2009; Resubmitted to Panel: February 12, 2010; Decided: April 2, 2010) 6 Docket No. 08-2004-pr 7 ------------------------------------- 8 RACKY RAMCHAIR, 9 Petitioner-Appellee, 10 - v - 11 JAMES CONWAY, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, 12 Respondent-Appellant. 13 ------------------------------------- 14 Before: 15 WINTER, CALABRESI, and SACK, Circuit Judges. Appeal from a judgment of the United States District 16 Court for the Eastern District of New York (John Gleeson, Judge) 17 granting a writ of habeas corpus to the petitioner on the grounds 18 of ineffective assistance of state appellate counsel, and 19 ordering a new trial. 20 district court solicited testimony from appellate counsel, which 21 supported the court's finding of ineffectiveness, and clarified 22 its decision to order a new trial rather than a new state-court 23 appeal. 24 Affirmed. Pursuant to a Jacobson remand, the 1 2 FRANK HANDELMAN, Law Office of Frank Handelman, New York, NY, for Appellee. 3 4 5 6 ROSEANN B. MACKECHNIE, Deputy Solicitor General for Criminal Matters, for Andrew M. Cuomo, Attorney General, New York, NY, for Appellant. 7 8 9 Sack, Circuit Judge: This case has returned to us following a remand to the United States District Court for the Eastern District of New York 10 (John Gleeson, Judge) pursuant to United States v. Jacobson, 15 11 F.3d 19, 21-22 (2d Cir. 1994). 12 additional findings of fact and conclusions of law supporting its 13 order granting Petitioner-Appellee Racky Ramchair's petition for 14 a writ of habeas corpus under 28 U.S.C. § 2254, and a 15 clarification of its decision to grant Ramchair a new trial, 16 rather than a new appeal. 17 124 (2d Cir. 2009) (summary order) ("Ramchair III"). 18 We sought from the district court Ramchair v. Conway, 335 F. App'x 122, At trial, Ramchair's counsel had moved for a mistrial 19 after the prosecutor elicited testimony that counsel had been 20 present at the lineup procedure during which Ramchair was 21 identified as the perpetrator of the crime with which he was 22 charged, but that counsel had not objected to the lineup. 23 moving for a mistrial, trial counsel had requested and been 24 denied permission to testify in rebuttal to the testimony by way 25 of explanation as to why he may not have objected. 26 for a mistrial was denied, and Ramchair was ultimately convicted 27 of first- and second-degree robbery. 28 concluded that Ramchair had been denied effective assistance of 2 Before The motion The district court 1 appellate counsel because appellate counsel had failed to claim 2 on appeal that the trial court had erred in denying Ramchair's 3 motion for a mistrial. 4 Respondent-Appellant James Conway, Superintendent of 5 Attica Correctional Facility (the "State"), appealed from the 6 grant of the writ and the grant of a new trial. 7 the district court to solicit evidence from appellate counsel as 8 to her decision not to raise the mistrial claim, and for the 9 district court to set forth its reasons for granting a new trial 10 We remanded for rather than a new appeal. 11 After holding an evidentiary hearing at which appellate 12 counsel testified, the district court issued an order clarifying 13 its grant of the writ and its grant of a new trial. 14 In light of the testimony elicited at the hearing, we 15 conclude that the district court's decision to grant the writ was 16 correct. 17 was not a sound strategic decision, but a mistake based on 18 counsel's misunderstanding that the mistrial claim, which trial 19 counsel explicitly made, had not been preserved. 20 the district court that this mistake rose to the level of 21 constitutional ineffectiveness, and that the New York Court of 22 Appeals' decision to the contrary was an unreasonable application 23 of clearly established Supreme Court precedent. 24 conclude, in light of the reasons provided by the district court, 25 that its choice of remedy -- a new trial -- was not an abuse of 26 discretion. Appellate counsel's failure to raise the mistrial claim 3 We agree with We also 1 We therefore affirm. BACKGROUND 2 3 The facts of this case, largely undisputed, have been 4 set forth accurately and in painstaking detail by the district 5 court in its first opinion in this case.1 6 Conway, No. 04 Civ. 4241, 2005 WL 2786975, 2005 U.S. Dist. LEXIS 7 25852 (E.D.N.Y. Oct. 26, 2005) ("Ramchair I"); see also Ramchair 8 v. Conway, 671 F. Supp. 2d 365 (E.D.N.Y. 2008) ("Ramchair II"); 9 Ramchair v. Conway, 671 F. Supp. 2d 371 (E.D.N.Y. 2009) See Ramchair v. 10 ("Ramchair IV"). We rehearse them here only insofar as we think 11 it necessary to explain our resolution of this appeal. 12 Facts and Procedural History 13 In June 1995, Ramchair was charged with the robbery of 14 a cabdriver in Queens after being identified by the victim in a 15 lineup approximately seven weeks after the robbery. 16 had told the police that one of the two robbers was Guyanese 17 Indian, which is, indeed, Ramchair's ethnicity. 18 people in the lineup, at least four were not Guyanese, and at 19 least two, unlike Ramchair, had no facial hair.2 20 appointed defense counsel, Jonathan T. Latimer, III, was present 21 at the lineup. 22 23 The victim Of the six Ramchair's Ramchair later moved to suppress the identification on the ground that the lineup was unduly suggestive. 1 Detective That opinion is not reported in the Federal Supplement. 2 The police provided carbon paper for those without facial hair to rub on their faces. 4 1 Robert Winnik, the police officer who was present at the lineup, 2 testified to its circumstances, including the presence of an 3 attorney -- Latimer -- for Ramchair. 4 motion, the prosecutor did not elicit information about Latimer's 5 conduct during the lineup. 6 the case proceeded to trial in Supreme Court, Queens County. 7 8 At the hearing on the The motion to suppress was denied and During his first trial, Ramchair was assaulted in jail. The court therefore declared a mistrial. 9 Ramchair's second trial revolved around the disputed 10 lineup identification. It also ended in a mistrial, over defense 11 objection, when one of the jurors was hospitalized during 12 deliberations. 13 to elicit testimony regarding Latimer's conduct during the 14 lineup. 15 recall who represented Ramchair at the lineup. During the trial, the prosecutor had not sought Indeed, Detective Winnik testified that he could not 16 At Ramchair's third trial, defense counsel Latimer 17 again disputed the fairness of the lineup. For the first time, 18 Winnik identified Latimer as having been present at the lineup. 19 The prosecution then sought to elicit testimony from the 20 detective about whether Latimer had objected to the lineup at the 21 time. 22 him a witness. 23 testified that Latimer, although present, had not objected to the 24 lineup.3 Latimer objected, arguing that the prosecution was making The court overruled the objection and Winnik 3 Latimer cannot recall whether he voiced objections at the lineup. 5 1 Latimer then requested permission to testify in 2 rebuttal to Winnik's testimony, arguing that the prosecution's 3 examination had improperly made him a witness against his own 4 client. 5 should have known in advance that he wished to testify to the 6 improprieties of the lineup, and thus should have withdrawn from 7 representing Ramchair before trial. 8 that he had not planned to testify to any such improprieties, but 9 now thought it necessary to rebut the implication that he had, by The court denied the request, reasoning that Latimer Latimer attempted to explain 10 his asserted silence at the time, conceded that the lineup was 11 fair. 12 Latimer that his views about the lineup were not relevant and 13 that in any event, there had been no testimony as to his views of 14 its fairness. The trial court again denied the request, instructing 15 After Winnik's testimony, Latimer moved for a mistrial: 16 17 18 19 20 21 22 23 I have a motion for a mistrial. I think it is completely improper to allow the prosecution to imply through their questioning of this witness that I somehow condoned the line-up and contend that is fair and then not allow me to testify myself or to put on that information in the contrary with respect to that issue. 24 Ramchair I, 2005 WL 2786975 at *6, 2005 U.S. Dist. LEXIS 25852 at 25 *15-*16. 26 relied upon Winnik's testimony as to Latimer's conduct at the 27 lineup in her summation. The motion was denied. The prosecutor then explicitly 6 1 Ramchair was convicted and sentenced to concurrent 2 terms of imprisonment of 10 to 20 years on the first-degree 3 conviction and 5 to 10 years on the second-degree conviction. 4 Ramchair appealed. He was represented by new counsel 5 on appeal. 6 lawyers to perfect Ramchair's appeal -- appellate counsel raised 7 two grounds for reversal. 8 9 Eventually -- it took five years for Ramchair's First, counsel argued that Ramchair's third trial violated his right not to be placed in double jeopardy. The New 10 York Supreme Court, Appellate Division, Second Department, 11 rejected this argument because, in its view, the declaration of a 12 mistrial in Ramchair's second trial had become "manifestly 13 necessary" when one of the jurors had been hospitalized during 14 deliberations, after the alternate jurors had been dismissed. 15 People v. Ramchair, 308 A.D.2d 601, 602, 764 N.Y.S.2d 725, 726 16 (2d Dep't 2003). 17 Second, appellate counsel argued that Ramchair's 18 constitutional right to present a defense was violated by the 19 trial court's denial of Latimer's request to testify. 20 rejected this argument too, citing the provision of the New York 21 Code of Professional Responsibility, and related cases, 22 prohibiting an advocate from acting as a witness on a significant 23 issue of fact, subject to limited exceptions. 24 that "since the defense counsel never requested to withdraw as 25 the defendant's attorney so that he could be the defendant's 26 witness," the trial court did not err in denying defense counsel 7 The court The court reasoned 1 permission to testify, because allowing him to testify would turn 2 him into an advocate-witness. 3 N.Y.S.2d at 726-27. 4 before the Appellate Division the issue of the trial court's 5 refusal to grant a mistrial upon Ramchair's trial counsel's 6 motion seeking one. 7 Id., 308 A.D.2d at 602, 764 Appellate counsel did not, however, raise After leave to appeal to the Court of Appeals was 8 denied, Ramchair filed, pro se, for habeas relief in the United 9 States District Court for the Eastern District of New York (John 10 Gleeson, Judge), raising the same claims that were rejected on 11 direct appeal. 12 claims did not warrant habeas relief, a claim of ineffective 13 assistance of appellate counsel raised by court-appointed habeas 14 counsel might have been meritorious. 15 at *16, 2005 U.S. Dist. LEXIS 25852 at *50-*51. 16 held Ramchair's petition in abeyance pending the exhaustion of 17 that claim in state court. 18 U.S. Dist. LEXIS 25852 at *54. 19 The district court concluded that while those Ramchair I, 2005 WL 2786975 It therefore Id., 2005 WL 2786975 at *18, 2005 Ramchair then sought to exhaust by filing a petition 20 for a writ of error coram nobis with the Appellate Division, 21 arguing that appellate counsel had been ineffective for failing 22 to raise the claim that the trial court had erred in denying 23 defense counsel's motion for a mistrial. 24 denied the application without comment, see People v. Ramchair, 25 27 A.D.3d 668, 810 N.Y.S.2d 685 (2d Dep't 2006), and the Court of 26 Appeals affirmed, People v. Ramchair, 8 N.Y.3d 313, 316, 864 8 The Appellate Division 1 N.E.2d 1288, 1290 (2007). 2 appellate counsel's brief to the Appellate Division had been 3 "comprehensive," and the arguments raised therein "strong." 4 The court concluded that "appellate counsel might have determined 5 as a matter of reasonable appellate strategy that there was a 6 greater likelihood of success pursuing the right to present a 7 defense argument, rather than focusing on the mistrial 8 application." 9 court" [could] not say from this record that there was no solid 10 The Court of Appeals reasoned that Id., 8 N.Y.3d at 317, 864 N.E.2d at 1291. legal basis for appellate counsel's strategy." 11 Id. The Id. After the district court resumed and completed its 12 consideration of Ramchair's habeas petition, the court granted 13 it. 14 that Ramchair's trial had been unfair because the prosecution's 15 "surprise tactic made Latimer an essential witness to the central 16 factual dispute in the case: whether or not [the victim's] 17 identification of Ramchair as the Guyanese Indian perpetrator 18 [was] the result of a suggestive line-up." 19 court was of the view that appellate counsel had correctly 20 identified the unfairness, but had sought relief -- allowing 21 Latimer to testify at trial -- that had minimal support in the 22 law, while failing to argue for a mistrial, which "a reasonable 23 appellate court would have granted" and which would have allowed 24 Latimer to testify at a new trial, after Ramchair had obtained 25 new counsel. 26 appellate counsel's failure to raise the mistrial claim was Ramchair II, 671 F. Supp. 2d at 371. Id. at 370-71. The court concluded Id. at 367. The The district court determined that 9 1 constitutionally ineffective, and the Court of Appeals' 2 conclusion to the contrary was unreasonable, because there was no 3 "conceiv[able] . . . strategy that would explain the failure to 4 request the proper relief." 5 State to release Ramchair within 45 days or declare its intention 6 within that time to retry him. 7 Id. at 370. The court directed the The State appealed from the grant of the writ and the 8 grant of a new trial. 9 originally set forth in Jacobson, 15 F.3d at 21-22, under which a 10 case is returned to the district court for it to address specific 11 issues and then returned to the same panel of this Court for 12 disposition of the appeal. 13 We instructed the district court to conduct an evidentiary 14 hearing to solicit testimony from appellate counsel as to whether 15 there was a strategic reason for not raising the mistrial claim, 16 and to set forth its reasons for awarding a new trial rather than 17 a new state-court appeal. 18 We remanded under the procedures Ramchair III, 335 F. App'x at 124. Id. On remand, the district court conducted an evidentiary 19 hearing. Appellate counsel testified that she did not think that 20 Latimer's motion for a mistrial preserved a claim that a mistrial 21 should have been granted for the purpose of enabling new counsel 22 to be appointed for Ramchair, thereby allowing Latimer to testify 23 about the lineup. 24 impression that the mistrial motion only preserved the claim that 25 the trial court erred in denying Latimer's request to testify at 26 the third trial. Appellate counsel was under the mistaken Evidentiary Hr'g Tr. 24, 46 (Sept. 30, 2009), 10 1 appended to Appellant's Ltr. Br. (Jan. 22, 2010) ("Tr. _"). 2 reasoned that the mistrial motion "was not framed as so [Latimer] 3 can be relieved as counsel and be available to testify at another 4 trial." 5 wanted a new trial because a fourth trial "would . . . [not be] 6 in the interest of judicial economy." 7 testified that she considered the mistrial claim, had it been 8 preserved, and the claim that the trial court erred in refusing 9 Latimer permission to testify at the third trial, to be equally Tr. 25. She She also reasoned that Latimer would not have Tr. 23. She further 10 strong arguments each of which could only succeed if the 11 Appellate Division "agree[d] with the issue that the [trial] 12 court erred in not allowing counsel to testify." 13 Tr. 25. Following the hearing, the district court issued an 14 order reaffirming and clarifying its grant of habeas relief and a 15 new trial. 16 concluded that appellate counsel's failure to raise the mistrial 17 claim was not the product of sound strategy, but a mistake that 18 rose to the level of constitutional ineffectiveness, and that the 19 New York Court of Appeals had applied Supreme Court precedent 20 unreasonably in deciding otherwise. 21 Ramchair IV, 671 F. Supp. 2d 371. The court Id. In explaining its decision to grant a new trial rather 22 than a new appeal in state court, the court pointed out the 23 exceptionally long delay that Ramchair has endured - more than 24 twelve and one-half years - since his conviction, during which 25 time he has been incarcerated, without having the issue of the 26 constitutional propriety of his conviction finally determined. 11 1 Id. at 384-85. 2 had already expressed a "dim view" of the mistrial claim in its 3 denial of Ramchair's application for a writ of error coram nobis, 4 but that it thought the argument that he was due a new trial was 5 "unassailable." 6 7 It also noted that the New York Court of Appeals Id. at 384. The case has now been returned to this panel pursuant to Jacobson. DISCUSSION 8 9 I. Standard of Review 10 "We review a district court's grant or denial of habeas 11 corpus de novo, and the underlying findings of fact for clear 12 error." 13 review the district court's choice of [a habeas] remedy . . . for 14 an abuse of discretion." 15 381 (2d Cir. 1998) (28 U.S.C. § 2255 petition); accord Douglas v. 16 Workman, 560 F.3d 1156, 1176 (10th Cir. 2009) (per curiam) 17 (section 2254 petition). 18 19 20 21 Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir. 2008). "We United States v. Gordon, 156 F.3d 376, II. Analysis A. Standard for Habeas Relief Based on Ineffective Assistance of Counsel "Under the deferential standard of review established 22 by the Antiterrorism and Effective Death Penalty Act of 1996 23 (AEDPA), where the petitioner's claim 'was adjudicated on the 24 merits in State court proceedings,' as here, we may only grant 25 habeas relief if the state court's adjudication 'was contrary to, 26 or involved an unreasonable application of, clearly established 12 1 Federal law as determined by the Supreme Court of the United 2 States,' or 'was based upon an unreasonable determination of the 3 facts in light of the evidence presented.'" 4 589 F.3d 556, 561 (2d Cir. 2009) (quoting 28 U.S.C. § 2254(d)). 5 "We have held that in light of Strickland v. 6 Washington, 466 U.S. 668[ ] (1984), a Sixth Amendment ineffective 7 assistance of counsel claim necessarily invokes federal law that 8 has been 'clearly established' by the Supreme Court within the 9 meaning of AEDPA." Palacios v. Burge, Mosby v. Senkowski, 470 F.3d 515, 518-19 (2d 10 Cir. 2006) (internal quotation marks omitted). 11 ineffective assistance of appellate counsel, [petitioner] must 12 show that 'counsel's representation fell below an objective 13 standard of reasonableness,' and that 'there is a reasonable 14 probability that, but for counsel's unprofessional errors, the 15 result of the proceeding would have been different." 16 United States, 574 F.3d 101, 106 (2d Cir. 2009) (per curiam) 17 (quoting Strickland, 466 U.S. at 688, 694). 18 19 20 21 22 23 24 25 26 27 28 29 30 "[T]o establish Forbes v. In attempting to demonstrate that appellate counsel's failure to raise a state claim constitutes deficient performance, it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made. However, a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker. 31 Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (internal 32 citation omitted). 13 1 B. Ramchair Was Denied a Fair Trial 2 "The right to a fair trial[] [is] guaranteed to state 3 criminal defendants by the Due Process Clause of the Fourteenth 4 Amendment . . . ." 5 While "[t]he Constitution guarantees a fair trial through the Due 6 Process Clauses, . . . it defines the basic elements of a fair 7 trial largely through the several provisions of the Sixth 8 Amendment." 9 (2006) (internal quotation marks omitted). Cone v. Bell, 129 S. Ct. 1769, 1772 (2009). United States v. Gonzalez-Lopez, 548 U.S. 140, 146 "The right of an 10 accused in a criminal trial to due process is, in essence, the 11 right to a fair opportunity to defend against the State's 12 accusations. 13 and to call witnesses in one's own behalf have long been 14 recognized as essential to due process." 15 Mississippi, 410 U.S. 284, 294 (1973). 16 fundamental than that of an accused to present witnesses in his 17 own defense." 18 The rights to confront and cross-examine witnesses Chambers v. "Few rights are more Id. at 302. Ramchair was denied the opportunity to present a 19 crucial witness in his own defense in connection with the central 20 issue in his case -- the fairness of the lineup which was the 21 sole basis for his identification as the perpetrator of the crime 22 with which he was charged. 23 did not arise until, in the third trial but for the first time, 24 the prosecutor elicited testimony from Detective Winnik to the 25 effect that trial defense counsel, Latimer, who was present at The need for that witness's testimony 14 1 the lineup, did not object to it at the time. 2 implication was that Latimer conceded that the lineup was fair. 3 Because the trial court did not grant a new trial at which 4 Latimer could rebut this testimony as a witness, rather than 5 serve as defense counsel, Ramchair was deprived of the right to 6 present a witness essential to his case.4 7 The clear The state trial court's insistence that the testimony 8 had not implicated Latimer's opinion was mistaken -- that was the 9 plain purpose and likely effect of the testimony. The trial 10 court's statement that Latimer's opinion of the fairness of the 11 lineup was not relevant was also mistaken: 12 reasonably infer that if the counsel for the defendant thought 13 the lineup was fair, it must have been. 14 fair trial required that he have the opportunity to rebut the 15 detective's testimony by presenting his own witnesses as to 16 Latimer's opinion of the fairness of the lineup. 17 witness was Latimer himself. The jury could Ramchair's right to a The only such 18 Because the prosecution elicited the testimony at issue 19 for the first time at Ramchair's third trial, the trial court was 20 mistaken when it faulted defense counsel for not anticipating the 21 need to testify before that trial began and withdrawing in favor 22 of alternative counsel. 23 upon the prosecutor under these circumstances to inform the court Indeed, we think it was likely incumbent 4 As explained below, it was not feasible under the New York Code of Professional Responsibility for Latimer to testify at the third trial, because he was acting as Ramchair's lawyer. 15 1 of its plan to elicit the testimony at issue, because the 2 prosecutor had to know that it would likely create a conflict 3 between defense counsel and his client. 4 Malpiedi, 62 F.3d 465, 470 n.3 (2d Cir. 1995) ("We . . . trust 5 that it will not take another decision to induce the government 6 to bring any conflict of interest to the district court's 7 attention, rather than remaining silent in order to gain a 8 tactical advantage from that conflict."). 9 Cf. United States v. Ramchair was thus deprived of his right to a fair 10 trial. 11 C. Appellate Counsel Was Constitutionally Ineffective 12 Latimer sought to vindicate his client's fair trial 13 right by moving for a mistrial at the conclusion of Detective 14 Winnik's testimony. 15 taken by appellate counsel, she grasped the unfairness of the 16 trial, but did not seem to understand that under the 17 circumstances, the grant of that mistrial motion was 18 constitutionally mandatory. 19 testify at the third trial, not his motion for a fourth one, 20 should have been granted.5 21 The motion was denied. When the matter was She argued that Latimer's request to The argument pursued by appellate counsel had minimal 22 chance of success. "It is well established that once 23 representation is undertaken, a lawyer must withdraw as advocate 24 if it appears that he must testify on behalf of his own client." 5 Appellate counsel also made a colorable but ultimately meritless claim under the Double Jeopardy Clause. Tr. 18. 16 1 People v. Rivera, 172 A.D.2d 633, 568 N.Y.S.2d 435 (2d Dep't 2 1991); see also People v. Paperno, 54 N.Y.2d 294, 299-300, 429 3 N.E.2d 797, 800 (1981) ("The advocate-witness rule . . . 4 generally requires the lawyer to withdraw from employment when it 5 appears that he . . . will be called to testify regarding a 6 disputed issue of fact.") (internal citations omitted). 7 "advocate-witness" rule was codified in Disciplinary Rule ("DR") 8 5-102(A) of the New York Code of Professional Responsibility 9 effective at the time of Ramchair's appeal.6 10 DR 5-102(A) provided, at the time of Ramchair's third trial: 11 12 13 14 15 16 17 18 19 20 The If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness on behalf of the client, the lawyer shall withdraw as an advocate before the tribunal, except that the lawyer may continue as an advocate and may testify in the circumstances enumerated in DR 5-101(B)(1) through (4). 22 N.Y.C.R.R. § 1200.21 (1996). 21 The exceptions listed in DR 5-101(B) were as follows: 22 23 1. If the testimony will relate solely to an uncontested issue. 24 25 26 27 2. If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. 28 29 30 31 3. If the testimony the nature and value rendered in the case lawyer's firm to the will relate solely to of legal services by the lawyer or the client. 6 The rule is now codified in Rule 3.7(a) of the New York Rules of Professional Conduct, which is substantially the same as DR 5-102(A). See, e.g., Gabayzadeh v. Taylor, 639 F. Supp. 2d 298, 303 (E.D.N.Y. 2009) (differences "largely stylistic"). 17 1 2 3 4 5 4. As to any matter, if disqualification as an advocate would work a substantial hardship on the client because of the distinctive value of the lawyer as counsel in the particular case. 6 Id. § 1200.20 (1996). 7 Latimer would have worked a substantial hardship on Ramchair, and 8 counsel did not argue to the Appellate Division that any of the 9 other specified exceptions applied 10 There is no indication that replacing -- nor do they appear to.7 Latimer's request to testify while continuing to act as 11 an advocate, the denial of which was the basis for this argument 12 on appeal by counsel, ran directly contrary to the advocate- 13 witness rule. 14 that she raised the request because she thought it fell within 15 "the exception" to the advocate-witness rule. 16 case law . . . noted that [the requested testimony] might be 17 allowed in those instances where counsel was the only person who Appellate counsel testified in the district court Tr. 23. "[T]he 7 Appellate counsel testified at the evidentiary hearing that she "thought that . . . Mr. Latimer was primarily arguing for this because this was actually the defendant's third trial. It seemed like it would be a hardship on everybody, and [not] in the interest of judicial economy to have yet another trial." Tr. 23. In other words, as we understand it, she was telling the district court that Latimer did not want a fourth trial because it would be a hardship and not judicially economical. It may be that Latimer would have preferred to have testified at the third trial rather than proceeding to a fourth one, but we find nothing to support the notion that a particular "substantial hardship" to Ramchair was involved. Appellate counsel also made a "substantial hardship" argument in her brief to the Appellate Division, but did not assert that a fourth trial, leaving Latimer available to testify, would represent a particular hardship to Ramchair, or explain why that would be so. 18 1 can testify to that particular matter." Tr. 22. But an 2 advocate's exclusive knowledge of facts material to the trial is 3 not listed as such an exception in DR 5-101(B). 4 case law relied upon by appellate counsel in pursuing the state- 5 court appeal does not establish such an exception.8 6 v. Baldi, 54 N.Y.2d 137, 148-49 & n.1, 429 N.E.2d 400, 406 & n.1 7 (1981) (concluding that defense counsel was not constitutionally 8 ineffective for, inter alia, testifying on behalf of client where 9 doing so "strengthened the insanity defense").9 And the New York See People 10 While appellate counsel pointed the Appellate Division 11 to dicta from two out-of-state cases making reference to such an 12 exception, see United States v. Ewing, 979 F.2d 1234, 1236 (7th 13 Cir. 1992); United States v. Fogel, 901 F.2d 23, 26 (4th Cir. 14 1990), it was highly unlikely that that court would decide that 15 the trial court had committed reversible error and abused its 16 discretion in declining to rely on those cases.10 It was, 8 Appellate counsel did not identify authority to support such an exception in her testimony to the district court. 9 We also note that in Baldi, "there [was] some evidence that defendant was wary of strangers and trusted [defense counsel], so that [defense counsel's] withdraw as counsel might have been ill-advised." Id., 54 N.Y.2d at 149 n.1, 429 N.E.2d 406 n.1. We offer no view as to whether, under Baldi or otherwise, it would have been within the trial court's discretion to allow Latimer to testify at the third trial had it chosen to do so. Application of the advocate-witness rule is subject to the trial court's discretion. See Stober v. Gaba & Stober, P.C., 259 A.D.2d 554, 606 N.Y.S.2d 440 (2d Dep't 1999). 10 Even the out-of-state cases relied upon by appellate counsel, although referring to an exception for an attorney's exclusive knowledge of facts material to the trial, did not apply it, and affirmed the decisions of trial courts prohibiting an 19 1 therefore, unsurprising that the Appellate Division denied 2 Ramchair's state-court appeal without reference to them. 3 Appellate counsel was not wrong to argue for Ramchair's 4 right to present a defense; rather, she was wrong to argue that 5 it had to be vindicated by defense counsel Latimer serving as an 6 advocate-witness in the third trial, and failing to argue that it 7 should have been vindicated through the declaration of a 8 mistrial. 9 defendant] of a fair trial, the appropriate manner for defendant Where "conduct . . . has deprived [a criminal 10 to raise the issue is by a motion for a mistrial." People v. 11 Thompson, 79 A.D.2d 87, 108 n.19, 435 N.Y.S.2d 739, 754 n.19 (2d 12 Dep't 1981). 13 declare a mistrial and order a new trial of the indictment . . . 14 [u]pon motion of the defendant, when there occurs during the 15 trial an error or legal defect in the proceedings, or conduct 16 inside or outside the courtroom, which is prejudicial to the 17 defendant and deprives him of a fair trial." 18 Procedure Law ("CPL") § 280.10. 19 fair trial, the state trial court erred as a matter of law in not 20 granting the mistrial motion. 21 distorting effects of hindsight," Strickland, 466 U.S. at 689, we 22 nonetheless conclude that appellate counsel's failure to raise 23 the mistrial claim falls outside that category of "omissions by "At any time during the trial, the court must advocate from testifying. 901 F.2d at 26. New York Criminal Because Ramchair was denied a Taking into account "the See Ewing, 979 F.2d at 1236; Fogel, 20 1 counsel that might be considered sound trial strategy," Henry v. 2 Poole, 409 F.3d 48, 63 (2d Cir. 2005) (internal quotation marks 3 omitted).11 4 "[S]tate appellate counsel's failure to argue the 5 [issue in question] was below the standards of reasonably 6 competent performance, for the claims [she] raised were extremely 7 weak, while the [claim based on the issue in question] was 8 particularly strong." 9 prejudicial. Mayo, 13 F.3d at 534. It was also There is a reasonable probability that the 10 Appellate Division and the Court of Appeals would have been 11 swayed by the mistrial claim, because that claim was sound. 12 defendant need not show that counsel's deficient conduct more 13 likely than not altered the outcome in the case." 14 F.3d at 63 (internal quotation marks omitted) (emphasis in 15 original). 16 observation that the Court of Appeals intimated, after the fact, 17 that it took a "dim" view of the mistrial claim, Ramchair IV, 671 11 "[A] Henry, 409 We conclude, notwithstanding the district court's A "[d]efendant's motion for a mistrial and [the] Supreme Court's denial of that motion sufficiently preserved the question of law for [state-court appellate] review." People v. Smith, 97 N.Y.2d 324, 330, 766 N.E.2d 941, 945 (2002). In its brief submitted after this case was returned to us, the State cites People v. Weston, 56 N.Y.2d 844, 438 N.E.2d 873 (1982), for the proposition that the mistrial claim was not preserved because although Latimer specified the legal basis for the claim, he did not specify that he wished to withdraw as Ramchair's counsel. Weston does not support that proposition. In Weston, a motion for a mistrial on the ground that the State would not be able to connect certain evidence to the defendant did not preserve a claim that the trial judge should have prevented references to that evidence to avoid prejudice. The court explained that the claim of prejudice was separate from, and thus not preserved by, the claim regarding the State's ability to connect the evidence to the defendant. 21 1 F. Supp. 2d at 384, that there was a reasonable probability that 2 the state courts would have recognized a sound claim had it been 3 timely made, and Ramchair was prejudiced by appellate counsel's 4 failure to raise it. 5 6 D. The New York Court of Appeals' Application of ClearlyEstablished Supreme Court Precedent was Unreasonable 7 We assume, as the district court appears to have 8 assumed, that the New York Court of Appeals applied the correct 9 Supreme Court precedent governing ineffective assistance 10 claims.12 11 the Court of Appeals applied the law unreasonably. 12 of Appeals noted, "[a]ppellate advocacy is meaningful if it 13 reflects a competent grasp of the facts, the law and appellate 14 procedure, supported by appropriate authority and argument." 15 People v. Ramchair, 8 N.Y.3d at 316, 864 N.E.2d at 1290 (internal 16 quotation marks omitted). 17 explained, did not meet that standard here. We conclude as did the district court, however, that As the Court Appellate counsel, as we have 18 The Court of Appeals said that appellate counsel 19 submitted a "comprehensive brief to the Appellate Division 20 raising two strong claims on [the] defendant's behalf." 21 But, having omitted the only claim that was clearly meritorious, 22 we cannot see how the brief can be said to have been 23 "comprehensive." 12 Id. After noting that state criminal defendants have both a state and federal right to the effective assistance of appellate counsel, the Court of Appeals discussed only the "meaningful representation" standard developed under state law. People v. Ramchair, 8 N.Y.3d at 316, 864 N.E.2d at 1290. 22 1 The Court of Appeals also said that "appellate counsel 2 might have determined as a matter of reasonable appellate 3 strategy that there was a greater likelihood of success pursuing 4 the right to present a defense argument, rather than focusing on 5 the mistrial application." 6 1291. 7 revealed that her decision to forego the mistrial claim was not a 8 product of strategy, sound or otherwise, but of mistake. 9 we have explained, the "right to present a defense" argument was Id., 8 N.Y.3d at 317, 864 N.E.2d at But appellate counsel's testimony in the district court And, as 10 not an alternative to arguing the mistrial application; on the 11 contrary, the mistrial application was the appropriate vehicle 12 for vindicating the right to present a defense. 13 The Court of Appeals thus applied the law governing 14 ineffective assistance of counsel unreasonably, and federal 15 habeas relief is warranted. 16 17 E. The District Court Did Not Abuse Its Discretion in Granting a New Trial 18 "Federal habeas corpus practice . . . indicates that a 19 court has broad discretion in conditioning a judgment granting 20 habeas relief. 21 habeas corpus matters as law and justice require." 22 Braunskill, 481 U.S. 770, 775 (1987) (internal quotation marks 23 omitted); accord, Levine v. Apker, 455 F.3d 71, 77 (2d Cir. 24 2006). 25 to the general rule that remedies should be tailored to the 26 injury suffered from the constitutional violation and should not Federal courts are authorized . . . to dispose of Hilton v. "Cases involving Sixth Amendment deprivations are subject 23 1 unnecessarily infringe on competing interests." 2 Morrison, 449 U.S. 361, 364 (1981). 3 United States v. In its order following our remand, the district court 4 set forth its reasons for concluding that a new trial was the 5 remedy best tailored to the constitutional violation in this 6 case. 7 since his conviction. 8 served more than half of his maximum sentence as a result of a 9 variety of delays, some of them unreasonable and none of them Chief among them was the long delay Ramchair has endured Indeed, Ramchair appears already to have 10 apparently of his doing. 11 would further delay any new trial, and because the district court 12 found the mistrial claim unassailably meritorious due to the 13 unfairness of Ramchair's trial, the district court concluded that 14 remanding for a new trial, without pausing for a new appeal, was 15 appropriate. 16 Because remanding for a new appeal Requiring a new trial was thus not an abuse of the 17 district court's discretion to fashion a habeas remedy. See, 18 e.g., Eagle v. Linahan, 279 F.3d 926, 944 (11th Cir. 2001) 19 (remanding for new trial where appellate counsel was ineffective 20 for failing to raise Batson challenge). 21 Circuit relied upon by the State for the proposition that a 22 remand for a new trial was beyond the district court's 23 discretion, the court remanded for a new appeal with no 24 discussion of why it was doing so rather than ordering a new 25 trial. 26 Jenkins v. Coombe, 821 F.2d 158, 162 (2d Cir. 1987), cert denied, In the cases in this See Claudio v. Scully, 982 F.2d 798, 806 (2d Cir. 1992); 24 1 484 U.S. 1008 (1988); Barnes v. Jones, 665 F.2d 427, 436 (2d Cir. 2 1981), rev'd on other grounds, 463 U.S. 745 (1983). 3 cases, nor any others of which we are aware, precludes a district 4 court from ordering a new trial in circumstances such as those 5 presented here. 6 Cir. 2004)(affirming habeas relief of new state-court appeal for 7 ineffective assistance of appellate counsel, and rejecting 8 petitioner's request for ruling on underlying sentencing issue as 9 "go[ing] far beyond neutralizing the constitutional deprivation None of the But cf. Mapes v. Tate, 388 F.3d 187, 194-95 (6th 10 suffered by the defendant." (internal quotation marks and 11 alterations omitted).) 12 This is a matter committed to the sound discretion of 13 the district court. 14 within its discretion. CONCLUSION 15 16 17 18 We conclude that the district court acted For the foregoing reasons, the judgment of the district court is affirmed. The mandate shall issue forthwith. 25
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