Interesting summary order today from Second Circuit. The decision focuses on the standard for reviewing state court factual findings. That's a timely issue; I have discussed that stuff around here recently.
Goldberg v. Tracy, 08-1683-pr, Feb. 17, 2010, available here
- Affirming Denial of Habeas
- Panel: Katzmann, Lynch, Stanceau, Ct. of Int'l Trade
- Issues: IAC and IAAC
The question here was whether counsel was ineffective for failing to inform petitioner about a plea deal. The focus of the claim is on two factual findings made by the state court: (1) whether counsel advised petitioner of the plea; and (2) whether petitioner would have accepted the plea had he known about it.
Unlike the two most recent published opinions that completely mashed up the two standards, the court here separates them out. That's a little clearer. But the court is still applying both standards to every case without any explanation as to whether that's appropriate. That makes it very confusing.
And that shows up in the analysis. Here is what the court says:
Although the reasonableness of the state court finding that Goldberg was informed of and advised on the second plea offer is perhaps open to question, we need not determine whether Goldberg has overcome the statutory presumption that the state court’s factual determination was correct on this issue.
So what does petitioner need to show? That the finding is unreasonable? Or that the statutory presumption needs to be overcome? I guess the Second Circuit means to equate unreasonableness with the presumption of correctness that can only be overcome through clear and convincing evidence. It's an awkward equation. The standards are not asking the same thing. Nevertheless, that's what other circuits have explicitly done. I am assuming that the Second Circuit intends to do that here. But we shouldn't have to guess that. I think the Second Circuit needs to clear all of this up because this is just confusing.
The court then drops unreasonableness altogether as to the other factual finding. It states:
Even if we assume that Goldberg’s attorney did not communicate the plea offer, and therefore the first Strickland prong is met, Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003), we find that Goldberg has failed to demonstrate by clear and convincing evidence that there existed, under the circumstances, a reasonable probability that he would have accepted the offer had it in fact been made.
So the court only looks at the presumption of correctness, the more exacting standard. Well, let's say that petitioner can't overcome that standard, but can show that the finding was unreasonable based on the state court record? In other circuits that would be enough.
The Second Circuit needs to have a more in depth discussion about how these two standards interact with each other.
As it stands, it's a bit confusing.