Saturday, April 10th, 2010

An Appeal To Reason

Ramchair v. Conway, No. 08-2004-pr (2d Cir. April 2, 2010)(Winter, Calabresi, Sack, CJJ)

It seems as if most Second Circuit habeas decisions deal only with the procedural hurdles faced by state prisoners. So it is indeed remarkable that the court has decided two cases less than one week apart in which it got through the procedural thicket and actually resolved the substantive issue presented in the case. This decision, in which the court agrees that the petitioner’s state court appellate counsel was constitutionally ineffective, is accordingly blog-worthy.

The case has a long history. Ramchair was charged with a 1995 robbery after he was identified in a fairly suspect lineup, at which his counsel was present. He moved to suppress the identification and, after a hearing, the trial court denied the motion. He then had two trials that ended in mistrials, but at which the issue of counsel’s presence at the lineup never arose. At his third trial, his attorney – the same one who attended the lineup – disputed the fairness of the lineup. Over objection, the prosecutor permitted a detective to testify that Ramchair’s attorney had been present at, and did not object to, the lineup.

The attorney asked permission to testify to rebut the detective, but the trial judge denied the request. Accordingly, after the detective’s testimony, counsel moved for a mistrial, which the trial judge denied. Ramchair was convicted and sentenced to an indeterminate term of ten to twenty years’ imprisonment.

Ramchair appealed. It took five years for his appellate counsel to perfect the appeal. When appellate counsel finally got around to filing a brief, with respect to the lineup, counsel argued only that the trial court’s ruling prohibiting his counsel from testifying violated Ramchair’s constitutional right to present a defense. The Appellate Division affirmed, noting that trial counsel was ethically prohibited from acting as a witness. Appellate counsel did not raise on appeal “the issue of the trial court’s refusal to grant a mistrial upon Ramchair’s counsel’s motion seeking one.”

Ramchair then filed a habeas petition in the district court raising the same claims he had raised on his direct appeal. The district court concluded that those claims did not warrant relief, but that a claim that Ramchair’s appellate counsel was ineffective might have merit. The court held the petition in abeyance pending exhaustion of that claim in the state courts. Once the claim was exhausted, in 2009, the district court granted the petition. It held that appellate counsel had correctly identified the unfairness in the prosecutor’s surprise tactic that made trial counsel an essential witness to the central factual dispute in the case, but that counsel sought the wrong relief. A claim that defense counsel should have been allowed to testify had minimal support in the law, but a claim that the trial court erred in not granting a mistrial would likely have been accepted on appeal.

On the state’s appeal, the circuit remanded, instructing the district court to conduct an evidentiary hearing to determine whether there appellate counsel had a strategic reason for not raising the mistrial claim. At the hearing, appellate counsel explained that she was under the impression that the mistrial motion only preserved the claim that trial counsel should have been allowed to testify. She did not think that the mistrial motion preserved the claim that the mistrial itself should have been granted.

The district court granted the petition a second time, again holding that appellate counsel’s mistake constituted constitutional ineffectiveness. The court also granted Ramchair a new trial, rather than a new appeal, noting that Ramchair had been in custody for more than twelve years.

The circuit affirmed both holdings. It began by noting that Ramchair’s trial was indeed fundamentally unfair. The lineup was the only evidence that he had committed the robbery he was charged with, and Ramchair was denied an opportunity to present a crucial witness as to its fairness.

The circuit then agreed that appellate counsel was constitutionally ineffective. She pursued a strategy that had a “minimal chance of success,” since it “ran directly contrary to the advocate-witness rule.” Appellate counsel should have instead argued that Ramchair’s right to present a defense could only have been vindicated by a mistrial, which the trial court “erred as a matter of law in not granting.”

The error was also prejudicial since there is a “reasonable probability that the [appellate courts] would have been swayed by the mistrial claim, because that claim was sound.”

Finally, the district court did not abuse its discretion in granting a new trial. District courts have “broad discretion” in fashioning habeas relief, and there was no error in the court’s consideration of the long delays in this case, some of which were “unreasonable” and “none of them apparently of [Ramchair’s] doing.”

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