How Not To Hire An Investigator

Matthews v. United States, No. 10-0611-pr (2d Cir. June 14, 2012) (Kearse, Cabranes, Straub, CJJ)

Petitioner Michael Matthews was convicted of a 2006 bank robbery and received a life sentence under the federal "three strikes" statute, 18 U.S.C. § 3559(c). After exhausting his direct appeals, he filed a 2255 motion alleging, amongst other things, ineffectiveness of his trial counsel.

Matthew’s specific claim was that his counsel was ineffective because hired a private investigator, an ex-cop named Haumann, whom he knew had a conflict of interest. Matthews alleged that when Haumann was a police officer, he had arrested and "viciously assaulted" Matthews and had also treated him "with racial disdain and insensitivity." Matthews backed this up with a newspaper article that confirmed the facts, except for the racial allegations. Nevertheless, the district court, adopting the government’s characterization of the claim as "general" "cursory" and "vague," denied the petition without a hearing, although it did grant a COA.

On appeal, the circuit concluded that it was error for the district court to deny the 2255 without a hearing, and remanded the case for further proceedings on the ineffectiveness claim, along with anything else the district court intended to include in the COA, which did not specify any particular issue or issues.

To the circuit, there was clearly enough to the ineffectiveness issue to warrant a hearing. Strickland itself specifically identifies the investigation phase as a part of counsel’s performance that can be subject to an ineffectiveness claim, and Matthews alleged both that the investigator hired by his counsel was biased against him and that his counsel knew about the bias. "Although a conflict of interest or an inferable bias on the part of a person on whom the attorney relies for information in formulating a defense does not mean that the attorney himself has a conflict of interest, the record plainly reveals a plausible basis for an inference that Haumann could reasonably be expected to bear animus against Matthews. Matthews’s attorney’s reliance on such a person while knowing of that person’s presumable bias would call into question whether counsel had performed his ‘duty to make reasonable investigations’" under Strickland.

Deal Or No Deal?

United States v. Marks, No. 08-1207-cr (2d Cir. October 19, 2010) (Leval, Hall, Livingston, CJJ)

Defendant Chad Marks was convicted after a jury trial of drug trafficking offenses and two § 924(c) counts, and was sentenced to the resulting 40-year mandatory minimum. The trial came after months of plea negotiations, including an offer by the government to resolve the case with a 20-year sentence.

Before trial, Marks had filed a motion with the district court seeking to compel the government to follow up on a different plea offer that, apparently, was in the nature of a cooperation agreement. The court denied the motion and the case proceeded to trial.

But after trial, Marks’ counsel renewed that motion and, this time, the government’s opposition indicated that the government had extended a 20-year offer before trial. Before sentencing, Marks filed a pro se habeas corpus petition under 18 U.S.C. § 2241 claiming that (1) his counsel had never told him about the 20-year offer and (2) that Marks would have accepted the offer had he known about it. His specific allegation was that counsel had been ineffective.

The district court refused to hear the petition before sentencing, concluding that the argument should instead be raised in a § 2255 motion afterwards. Marks filed an interlocutory appeal, which the circuit dismissed without prejudice to any direct appeal or subsequent 2255. The district court then imposed sentence.

On this, Marks’ direct appeal, the circuit held that it was error for the district court to consider sentencing as a prerequisite to reviewing Marks’ claim of ineffectiveness. Here, there was no reason to wait, since the district court was “in a position to take evidence, if required, and to decide the issue pre-judgment.” Thus, the court held, “when a claim of ineffective assistance of counsel is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding.”

The factors for a district court to consider in deciding whether to adjudicate such a claim include the potential disruption to the proceedings and whether a new attorney would need to be appointed. But here, the district court “should have considered” the claim prior to sentencing. It had already relieved the attorney alleged to be ineffective and thus had “no good reason to postpone inquiry” into the merits of Marks’ claim. Moreover, the claim was “facial[ly] plausibl[e].” The AUSA confirmed that he had extended the 20-year offer before trial; when asked, defense counsel “equivocated” as to whether he had communicated the offer to Marks; there was a “significant ... disparity” between the sentence to which Marks was exposed and that contemplated by the offer; and Marks had consistently indicated that he would have accepted the offer had he known about it and was “persistent in his efforts” to secure a plea deal before trial.

On these facts, the district court erred in concluding that it was required to defer consideration of Marks’ claim to a post-judgment § 2255 motion and remanded the case for further proceedings on the issue.

The court also discussed the remedy. If the district court were to find that Marks’ counsel did not extend the 20-year offer and that Marks would have accepted it, the district court “would be required to place [him] in the position he would occupy had counsel been effective,” which means giving him “the opportunity to accept the never-communicated plea offer.”

Finally, in a footnote, the circuit agreed with the district court that a § 2241 petition is the incorrect vehicle for raising a pre-judgment ineffectiveness claim. The proper procedural avenue is a motion for a new trial under Fed.R.Cr.P. 33. But, since Marks was acting pro se, the court “should have denominated Marks’ § 2241 petition a Rule 33 motion, and it should have, at least in these circumstances, proceeded to reach the substance of the claim.”

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.”

Global Warming

United States v. Yauri, No. 08-1105-cr (2d Cir. March 12, 2009)(Sack, Wesley, CJJ, Kahn, DJ) (per curiam)

In Yauri’s money laundering plea agreement, the government agreed to a two-level reduction for a “global disposition" and to a loss amount of “more than $30,000.” His presentence report, however, recommended guidelines calculation based on a loss of more than $154,000 and omitted the global disposition reduction. At sentencing, his counsel, who had not attended the plea hearing, did not object to the omission of the global reduction, and agreed that the loss amount in the presentence report was correct, despite the language in the plea agreement and the fact that Yauri had not allocuted to a specific loss amount.

On appeal, he argued that his counsel was ineffective, and the government agreed, but only with respect to the failure to call the court’s attention to the global disposition reduction. The court agreed, as well, and remanded for resentencing.

Counsel’s possible ineffectiveness on the loss amount presents a more complicated question. The court is generally averse to resolving ineffectiveness claims on direct appeal, and here the record is not fully developed on the loss amount issue. While normally, a § 2255 motion would be the preferred method for raising such a challenge, sometimes a remand for further factfinding is the better way to address an ineffectiveness claim. This is such a case. Since it is already being remanded on one ineffectiveness claim, “efficiency will be served” if the district court addresses the second claim at the same time.

Out of Hindsight

Parisi v. United States, No. 06-1148-pr (2d Cir. June 13, 2008) (Winter, Hall, CJJ, Oberdorfer, DJ)

In this 2255 appeal, the defendant unsuccessfully argued that his counsel was constitutionally ineffective for failing to move for dismissal based on a Speedy Trial Act violation.

Facts

In 2001, Parisi was charged, in a complaint, with child pornography-related offenses. Although, under the Speedy Trial Act, the government had thirty days within which to indict him, the indictment was not filed until nearly 200 days later. During that period, counsel executed three “stipulations” seeking sixty-day continuances for plea negotiations. Each stipulation agreed that the ends of justice to be served by the delay would outweigh defendant’s and the public’s right to a speedy trial. The district court “so ordered” each stipulation.

In 2003, Parisi pled guilty under a plea agreement that included an appellate waiver, and received a 150-month sentence. He later filed a 2255 motion arguing that his attorney was ineffective in failing to make a speedy trial claim based on the delay between the complaint and indictment. While the 2255 matters were pending, the Supreme Court decided Zedner v. United States, 547 U.S. 489 (2006), under which the “so ordered” ends of justice findings were almost certainly invalid.

The Court’s Resolution of the Motion

The court first had to consider whether the claim was waived by the plea agreement. While a straightforward speedy trial claim would be waived, here the ineffectiveness claim was not. The court construed it as a claim that counsel "was ineffective in advising [Parisi] to accept the plea agreement rather than advising him to move to dismiss the indictment with prejudice based on alleged Speedy Trial Act violations." This survived the guilty plea and the appeal waiver because, "by focusing on the advice Parisi received from his attorney, it connects the alleged ineffectiveness of Parisi’s attorney with the voluntary nature of his plea."

Nevertheless, the court found no Sixth Amendment violation. It agreed that Zedner “serves as a reminder that the district court has an obligation independently to determine whether a continuance serves the ends of justice,” and that there was a “strong argument” that such an independent determination did not occur here, particularly since, under Zedner, the mere agreement to the continuance by the parties does not satisfy the Act.

Nevertheless, there was no ineffectiveness. Counsel did not act unreasonably in failing to anticipate Zedner, which was decided some five years later. Even today, if the circuit were to hold that the stipulations did not have the effect of stopping the speedy trial clock, it would be “articulating law on a previously unaddressed question.”