Been overwhelmed with work-related stuff, so I haven't had a chance to post much lately. That's going to continue probably into the middle of December.
But I did notice that the Second Circuit issued a summary order in Graham v. Portuondo, which was a district court habeas grant. The court vacated the habeas grant under Pinholster since the district court relied upon evidence developed at a hearing in federal court. It makes me kind of angry just writing that sentence. On the other hand, the court pointed out that it's really no big deal overall since petitioner can go back to state court and file a 440 relying upon the "significant" evidence of ineffectiveness developed at the federal court hearing. The State acknowledged that. So Graham could potentially get relief in either state court or back in federal court (which the court specifically mentioned in its decision).
But Graham is one of the lucky ones. What if the district court's decision had post-dated Pinholster? The state court refused to hold hearing, even though there was a (likely) meritorious ineffectiveness claim. Graham would have been completely out of luck. And, due to Pinholster, there would have been nothing that the federal court could have done about it. It makes me even angrier writing that sentence.
Graham is a perfect example of the problems with Pinholster/current state of the habeas statute. The state courts are given preclusive effect as to the evidence that the federal courts can consider in reviewing a habeas claim, even though the state court's failure to conduct a further factual inquiry was (at the very least) unreasonable. As a matter of fundamental fairness, it needs to be changed.
Graham v. Portuondo, 10-3636-pr
- Vacating Habeas Grant
- Argued: 9/23/11; Decided: 11/17/11; summary order
- Panel: Walker, Chin, Lohier
- Lower Ct. Info: 01-CV-6911, 2010 WL 3210691 (EDNY Aug. 12, 2010) (JBW)
- In Circuit: Habeas Grant
- Issues: IAC based on counsel's failure to adequately investigate petitioner's mental health issues prior to trial