Author Archive | Kendra Hutchinson

In United States v. Graham, No. 20-832 (2d Cir. Oct. 14. 2022) (Park, joined by Walker; Pérez concurring separately in the judgment), the defendant was convicted after trial of conspiracy to commit mail, wire, and bank fraud. On appeal, she argued, inter alia, that her lawyer rendered ineffective assistance of counsel per Missouri v. Frye by failing to timely convey a pre-trial plea offer.

The facts as to counsel’s inaction were not in dispute. The government argued, in response, that the defendant needed to raise her claim in a Section 2255 motion, and had not established prejudice.

The appeal proceeded to oral argument where, it turns out, the Court had some questions about something else: waiver. More specifically, whether Graham had waived her ineffectiveness claim. Supplemental briefing was ordered.

Ultimately, the majority affirmed the conviction on the ground of . . . you guessed it . . . …

The 2010 New York trial at issue in McCray v. Capra, 18-2336 (2d Cir. Aug. 17, 2022), an appeal of a state habeas corpus denial, was a pure credibility contest: the complainant testified she was violently raped; McCray testified the encounter was consensual but the two struggled afterward when she tried to steal from him; and both parties had injuries.

Prior to trial, however, and as often occurs in New York, after the prosecution disclosed the complainant’s psychiatric history, the trial judge examined her mental health records in camera for Brady material. Although there were over 5,000 pages of records, the judge only turned over 28 pages to the defense. McCray’s ensuing first-degree rape conviction was affirmed in the Appellate Division and New York Court of Appeals, both of which were closely-divided on the Brady non-disclosure issue he raised.

On appeal of the denial of McCray’s N.D.N.Y. habeas…