That's just odd to me. I check and re-check the Second Circuit's website every morning between 10:00 a.m. and 11:00 a.m. for their opinions. That is when the opinions are put on the website. I simply did not see this one on either day. I guess I'll need to add another "re-check" later in day.
Oh well. Here's the opinion:
Brown v. Greene, link here, Aug. 13, 2009, Feinberg, Raggi, Straub
Affirming Denial of Habeas.
Issue: whether counsel was ineffective for failing to object to an improper reasonable doubt jury instruction.
The opinion was written by Feinberg and joined by Raggi. Straub dissented.
The case concerns a jury instruction that stated:
In the district court, the case was referred to Magistrate Judge Peck who issued a report recommending that the petition be granted. District Judge Wood rejected the recommendation and denied the writ. She granted a COA.
On appeal, Judge Feinberg ruled that the state court's rejection of the claim was not an unreasonable application of federal law. He stated that defense counsel was not ineffective for failing to object. The disputed language here was similar to language discussed in three previous Second Circuit cases in which the court had upheld the convictions since the charge as a whole conveyed the proper standard. Thus, counsel aware of these prior cases could have reasonably concluded that the charge was appropriate. Judge Feinberg added that if the case had been in front of them in a different posture - not an ineffectiveness claim and not on habeas in a deferential posture - the court could have gone a little further in concluding that the language was constitutionally deficient. But that was not the case before them. The court emphasized that trial courts should stick to the Model Jury Instruction on reasonable doubt.
In dissent, Judge Straub believed that trial counsel was ineffective for failing to object to the constitutionally deficient jury charge. He stated:
At Brown’s trial, however, this troublesome preponderance language operated in concert with the court’s additional, unnecessary deviations from pattern instructions to diminish the prosecution’s burden of proving beyond a reasonable doubt that Brown was one of the two men who robbed Claudio Degli-Adalberti. In effect, Brown’s jury was instructed to decide whether Brown had been accurately identified as one of the perpetrators, the only disputed fact at trial, by a mere preponderance of the evidence. Such a jury charge is constitutionally deficient, and in my view it is unreasonable to find otherwise.
There is some other good stuff in here. Judge Straub pointed out that the trial judge here had been specifically criticized several different times for improper jury charges. In fact, the First Department in a case called Johnson (decided before Brown's case) reversed a conviction based on this language, among other improper language, from this judge. Judge Straub noted that in Brown's case the First Department did not even mention Johnson, even though three judges on Brown's panel also sat on the Johnson case. In my mind, this adds a dimension to the question of unreasonableness on the state court's part. In fact, Judge Straub later relies upon Johnson's reasoning to conclude that the state court decision in Brown was unreasonable. Talk about hoisting something by its own pitard.
He also stated that in those prior Second Circuit decisions that the majority mentioned the court found that the language was inappropriate. In my mind, this actually would signal to a defense attorney to object to similar language, particularly since the rest of the instruction was a mess.
I also want to quote some good language for habeas petitioners. It's not new, it was first stated earlier this year. But I wanted to highlight it. Under the standard of review, to establish unreasonableness, “'petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief. That increment, however, need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.' Jones v. West, 555 F.3d 90, 96 (2d Cir. 2009)."
It's important to bring that out since I felt that the Ninth Circuit opinion that I discussed around here a little while back was going down the path of making unreasonableness=judicial incompetence. It's good to see that the Second Circuit doesn't feel the same way.