Tuesday, March 15th, 2005

Circuit Again Vacates Grant of Habeas by Judge Weinstein

Eisemann v. Herbert, Docket No. 03-2582 (2d Cir. March 11, 2005) (Newman, Sack, and B.D. Parker) (Op. by Newman): Within the span of 3 days, the Second Circuit has twice reversed Judge Weinstein’s decision to grant § 2254 petitions brought by state prisoners in two separate cases. The other case, Benn v. Greiner, Docket No. 04-0527 (2d Cir. March 9, 2005), will soon be analyzed on this Blog.

Eisemann deserves a look for this introductory sentence alone: “Demonstrating that truth is often far stranger than fiction, this case involves a father and a son who sodomized the same victim, a trial lawyer who represented both the father and the son, and the disbarment for fraud convictions of both the trial lawyer and the son’s state court appellate lawyer.” Fortunately, the sole issue on appeal concerned whether trial counsel suffered from an actual conflict of interest that adversely affected his performance by representing both the father and the son. The father pleaded guilty before trial, and the son was subsequently convicted at trial — while represented primarily by an associate of the infamous trial counsel — of several counts of sodomy. After exhausting state remedies, the son brought a § 2254 petition in the E.D.N.Y. Judge Weinstein granted the petition.

The appeal turned on whether trial counsel’s conflict “adversely affected” his performance. Under Second Circuit law, a defendant “need suggest only a ‘plausible’ alternative strategy that was not pursued at trial” as a result of the lawyer’s conflict, even if the strategy is “not necessarily a ‘reasonable’ one.” Op. at 8-9. This position appears to conflict with the law in several other circuits, which more demandingly requires that the alternative strategy foregone by conflicted counsel be an “objectively reasonable one.” Op. at 9-10 (citing cases from the 4th, 8th, and 11th Circuits).

After noting the potential circuit split, Judge Newman went on to hold that even under the Second Circuit’s less demanding rule, the petition should not have been granted: The petitioner could not show even a “plausible” trial strategy that was foregone by trial counsel as a result of his representation of the father. The only such strategies proffered by the petitioner were (1) trial counsel’s failure to call the father to testify on the petitioner’s behalf, and (2) trial counsel’s failure to pursue a plea agreement with the state to testify against petitioner’s father. The first strategy was not a “plausible” one, the Circuit ruled, because “there is nothing in the record that provides the slightest indication as to what [the father] would have said if called or even that he would have said anything at all.” Op. at 11. The second strategy was not “plausible” because “the record does not contain evidence that [a plea] might even have been offered by the prosecutor.” Op. at 14. The Circuit thus concluded that because “there is nothing in the record to suggest that [trial counsel]’s conflict caused him to forgo a plausible defense theory,” the petition should not have been granted. Id.

Alternatively, the Court ruled that the petition should not have been granted because of the deference to state court rulings demanded by AEDPA. See 28 U.S.C. § 2254 (petition cannot be granted unless the state court’s ruling “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court”). Noting the circuit split mentioned above as well as ” the absence of a definitive ruling by the Supreme Court as to whether ineffective assistance claims based on a conflict of interest are to be assessed under the ‘plausible’ strategy standard of this Circuit or the ‘objectively reasonable’ standard of other circuits,” the Court concluded that “it was not unreasonable for the state court to assess and reject [the son’s] claim under what appears to have been the slightly more rigorous standard.” Op. at 16.

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