Last Tuesday, the Second Circuit issued an unpublished order in the case of Ramchair v. Conway (order here), in which the court vacated a district court grant of habeas corpus on the ground of ineffective assistance of appellate counsel. The court remanded the case for a hearing to give appellate counsel the opportunity to explain whether she had a strategic reason for failing to present a certain claim on appeal that the district court believed not only should have been presented but would have obtained a new trial for Ramchair.
Outside of the fact that the petitioner has one of my favorite names of all time, the twists and turns of this ongoing case have been truly fascinating. It has an extremely long history of back and forth battles between the federal and state courts. Additionally, it raises important questions as to what it means for an appellate attorney to be considered ineffective.
I think this case deserves an extended post. And I think the best way to talk about it is to break it up into chapters discussing each stage of the proceeding. Join me below the fold for the fascinating tale of the case of Racky Ramchair.
Outside of the fact that the petitioner has one of my favorite names of all time, the twists and turns of this ongoing case have been truly fascinating. It has an extremely long history of back and forth battles between the federal and state courts. Additionally, it raises important questions as to what it means for an appellate attorney to be considered ineffective.
I think this case deserves an extended post. And I think the best way to talk about it is to break it up into chapters discussing each stage of the proceeding. Join me below the fold for the fascinating tale of the case of Racky Ramchair.
Chapter 1 - The Incident, The Lineup, The Suppression Hearing
These facts are taken from the first of two district court opinions in the case:
In April 1995 in Queens, a cabdriver was robbed at gunpoint by two men who were passengers in his cab. The cabdriver, who is Guyanese, told the police that one of the assailants was Guyanese Indian, which was a characteristic that the cabdriver said was very important to his description. During the brief attack, which occurred at night, the Guyanese assailant predominantly remained in the back seat.
Ramchair, who is Guyanese Indian, was arrested seven weeks after the robbery and placed in a lineup. He was the only Guyanese Indian in the lineup. There were other critical aspects of the lineup that were later brought at a suppression hearing: while Ramchair had facial hair, some of the fillers did not. Carbon was rubbed on their faces to make it appear as if they had facial hair. It’s a highly unusual procedure. There was also a considerable difference in skin tone between the different participants in the lineup.
The victim viewed the lineup and identified Ramchair. Ramchair’s attorney, Jonathan T. Latimer, III, was present at the lineup.
Latimer moved to suppress the lineup as unduly suggestive. At the suppression hearing, the prosecutor asked the detective who conducted the lineup whether Latimer was present. The detective testified that he was. The prosecutor did not ask the detective whether Latimer objected to the lineup procedures or composition.
Chapter 2- The First, Second and Third Trials
Three jury trials occurred. Latimer continued to represent Ramchair at each trial.
In May 1996, the first trial ended prematurely with a mistrial after Ramchair was assaulted in jail.
At the second trial in May and June 1996, Ramchair pursued a misidentification defense based on a suggestive lineup. The same detective who testified at the suppression hearing testified about the lineup and did not mention that Latimer raised any objections to the lineup. The detective actually could not remember who represented Ramchair.
During deliberations, one of the jurors complained of chest pains and was taken to the hospital. Over defense counsel objection, the court declared a mistrial. Defense counsel later moved to preclude a third trial on Double Jeopardy grounds. The court denied the motion, finding that while jeopardy had attached, the court had fully investigated the juror’s condition and decided that there was no other alternative other than to declare a mistrial.
The third trial began in approximately August or September 1996. Once again, Latimer represented Ramchair and pursued a misidentification defense. More specifically, he argued that the cabdriver came to the lineup to pick out a Guyanese Indian and the defendant was the only person to match the description.
As at the second trial, the same detective testified about the lineup. But this time there were two additional details: (1) Latimer was the detective at the lineup; and (2) Latimer did not object to the lineup.
Latimer objected to the second addition and asked for a mistrial. He argued that the testimony was improper and made him a witness in the case. He wanted to testify in order to explain to the jury his reasons for not objecting. He would have stated that he did not approve of the lineup procedures, but he was not in a position to object as his role was only as witness and observer of the lineup. It was a deliberate strategy not to object since the police would only make ineffective cosmetic changes to the lineup and later say that the lineup was done in collaboration with the defense. He emphasized that, without his testimony, the implication left with the jury was that he approved of the lineup.
The court denied his request to testify and denied the mistrial application. It stated that defense counsel should have asked to be relieved prior to trial as he knew that his presence would be relevant to the case.
After the court’s ruling, the prosecutor ask further questions about Latimer’s failure to object to the lineup. During summations, the prosecution also made an issue out of Latimer’s failure to object to the lineup.
Ramchair was convicted of, inter alia, robbery in the first and, on April 28, 1997, he was sentenced to an overall term of 10 to 20 years in prison.
Chapter 3 - The Direct Appeal
The district judge noted in his opinion that it took appellate counsel five years to perfect the appeal (meaning file the brief), but the judge added that the reasons for the delay did not appear in the record.
From personal experience, I can say that five years is a really long time. But there are numerous justifications to explain the delay that have nothing to do with appellate counsel. It certainly could have been appellate counsel’s fault. However, if I had to guess, I would say that there are two explanations that are more likely for the delay. First, there is a chance that Ramchair failed to file a request for counsel soon after the appeal began. Counsel will not get assigned until that happens. Otherwise, the appeal will languish. This has happened in several of my cases and has led to two to three year delays in appeals getting perfected after the judgment date. Second, it would appear that appellate counsel had to track down a lot of transcripts beyond those that are typically given to assigned counsel. In some boroughs, court reporters are notoriously slow. I once received a transcript nearly two years after I ordered it. The delay here did not contribute to the finding of ineffectiveness. But the district court mentioned it in a way that suggested that appellate counsel was to blame and it colored his impression of her. Without more information, I don’t think it was fair to imply that the delay was because of anything she did.
In her brief, appellate counsel raised two claims: (1) the third trial was a double jeopardy violation; and (2) Ramchair’s due process rights were violated when the court refused to allow Latimer to testify about the lineup. In her brief, appellate counsel included a full factual discussion of the mistrial application, but she did not specifically argue that a reversal was required based on the court’s failure to grant the mistrial application.
The Appellate Division, Second Department (the intermediate appellate court in New York that covers Queens) affirmed the conviction. With respect to the second issue, the court concluded:
In April 1995 in Queens, a cabdriver was robbed at gunpoint by two men who were passengers in his cab. The cabdriver, who is Guyanese, told the police that one of the assailants was Guyanese Indian, which was a characteristic that the cabdriver said was very important to his description. During the brief attack, which occurred at night, the Guyanese assailant predominantly remained in the back seat.
Ramchair, who is Guyanese Indian, was arrested seven weeks after the robbery and placed in a lineup. He was the only Guyanese Indian in the lineup. There were other critical aspects of the lineup that were later brought at a suppression hearing: while Ramchair had facial hair, some of the fillers did not. Carbon was rubbed on their faces to make it appear as if they had facial hair. It’s a highly unusual procedure. There was also a considerable difference in skin tone between the different participants in the lineup.
The victim viewed the lineup and identified Ramchair. Ramchair’s attorney, Jonathan T. Latimer, III, was present at the lineup.
Latimer moved to suppress the lineup as unduly suggestive. At the suppression hearing, the prosecutor asked the detective who conducted the lineup whether Latimer was present. The detective testified that he was. The prosecutor did not ask the detective whether Latimer objected to the lineup procedures or composition.
Chapter 2- The First, Second and Third Trials
Three jury trials occurred. Latimer continued to represent Ramchair at each trial.
In May 1996, the first trial ended prematurely with a mistrial after Ramchair was assaulted in jail.
At the second trial in May and June 1996, Ramchair pursued a misidentification defense based on a suggestive lineup. The same detective who testified at the suppression hearing testified about the lineup and did not mention that Latimer raised any objections to the lineup. The detective actually could not remember who represented Ramchair.
During deliberations, one of the jurors complained of chest pains and was taken to the hospital. Over defense counsel objection, the court declared a mistrial. Defense counsel later moved to preclude a third trial on Double Jeopardy grounds. The court denied the motion, finding that while jeopardy had attached, the court had fully investigated the juror’s condition and decided that there was no other alternative other than to declare a mistrial.
The third trial began in approximately August or September 1996. Once again, Latimer represented Ramchair and pursued a misidentification defense. More specifically, he argued that the cabdriver came to the lineup to pick out a Guyanese Indian and the defendant was the only person to match the description.
As at the second trial, the same detective testified about the lineup. But this time there were two additional details: (1) Latimer was the detective at the lineup; and (2) Latimer did not object to the lineup.
Latimer objected to the second addition and asked for a mistrial. He argued that the testimony was improper and made him a witness in the case. He wanted to testify in order to explain to the jury his reasons for not objecting. He would have stated that he did not approve of the lineup procedures, but he was not in a position to object as his role was only as witness and observer of the lineup. It was a deliberate strategy not to object since the police would only make ineffective cosmetic changes to the lineup and later say that the lineup was done in collaboration with the defense. He emphasized that, without his testimony, the implication left with the jury was that he approved of the lineup.
The court denied his request to testify and denied the mistrial application. It stated that defense counsel should have asked to be relieved prior to trial as he knew that his presence would be relevant to the case.
After the court’s ruling, the prosecutor ask further questions about Latimer’s failure to object to the lineup. During summations, the prosecution also made an issue out of Latimer’s failure to object to the lineup.
Ramchair was convicted of, inter alia, robbery in the first and, on April 28, 1997, he was sentenced to an overall term of 10 to 20 years in prison.
Chapter 3 - The Direct Appeal
The district judge noted in his opinion that it took appellate counsel five years to perfect the appeal (meaning file the brief), but the judge added that the reasons for the delay did not appear in the record.
From personal experience, I can say that five years is a really long time. But there are numerous justifications to explain the delay that have nothing to do with appellate counsel. It certainly could have been appellate counsel’s fault. However, if I had to guess, I would say that there are two explanations that are more likely for the delay. First, there is a chance that Ramchair failed to file a request for counsel soon after the appeal began. Counsel will not get assigned until that happens. Otherwise, the appeal will languish. This has happened in several of my cases and has led to two to three year delays in appeals getting perfected after the judgment date. Second, it would appear that appellate counsel had to track down a lot of transcripts beyond those that are typically given to assigned counsel. In some boroughs, court reporters are notoriously slow. I once received a transcript nearly two years after I ordered it. The delay here did not contribute to the finding of ineffectiveness. But the district court mentioned it in a way that suggested that appellate counsel was to blame and it colored his impression of her. Without more information, I don’t think it was fair to imply that the delay was because of anything she did.
In her brief, appellate counsel raised two claims: (1) the third trial was a double jeopardy violation; and (2) Ramchair’s due process rights were violated when the court refused to allow Latimer to testify about the lineup. In her brief, appellate counsel included a full factual discussion of the mistrial application, but she did not specifically argue that a reversal was required based on the court’s failure to grant the mistrial application.
The Appellate Division, Second Department (the intermediate appellate court in New York that covers Queens) affirmed the conviction. With respect to the second issue, the court concluded:
The defendant also contends that his constitutional right to present a defense was violated when the trial court precluded the defense counsel from testifying on his behalf at the third trial. The defense counsel sought to testify to rebut the detective's statement that he did not raise any objections at the lineup when the complainant identified the defendant. However, since the defense counsel never requested to withdraw as the defendant's attorney so that he could be the defendant's witness, it was proper for the trial court to preclude his testimony.
People v. Ramchair, 308 A.D.2d 601, 602 (2d Dept. 2003).
The New York Court of Appeals denied Ramchair’s request to have the court review the case.
Chapter 4 - The Habeas Petition
This is the point where the case gets crazy.
In 2004, Ramchair filed a pro se habeas petition, raising the two grounds that were advanced on appeal. The case was assigned to Judge John Gleeson in the Eastern District. He assigned counsel to Ramchair. Assigned counsel added an additional claim – ineffective assistance of appellate counsel based on appellate counsel’s failure to argue on appeal that the court erred in denying the defense request for a mistrial after the prosecutor raised the issue of the trial attorney’s failure to object at the lineup. From now on, I’ll refer to it as “the mistrial claim.”
After hearing oral argument, in October 2005, Judge Gleeson issued a really remarkable opinion. He concluded that habeas relief should be denied on the two claims raised in the pro se petition. However, he concluded that appellate counsel was ineffective for failing to raise the mistrial claim.
He started by discussing the unfairness that occurred at Ramchair's trial:
In my
view, the prosecutor's conduct was both unfair and prejudicial to Ramchair. Once
the prosecutor implied to the jury that Latimer had a different view of the
line-up's fairness at the time it occurred than the one he expressed at trial,
Ramchair needed Latimer as a witness to dispel that false implication. Because,
in the circumstances, it would have been untenable to permit Latimer to act as
both a key defense witness and the defense attorney, his motion for a mistrial
should have been granted.
Ramchair v. Conway, 04 CV 4241, 2005 WL 2786975 at *11 (EDNY Oct. 26, 2005). Judge Gleeson then went on to list eight different reasons why a mistrial should have been granted under the circumstances of the case.
He pointed out that the issue that was raised on appeal -- that the court should have let Latimer testify -- was not an unreasonable application of federal law.
However, he found that the ineffective assistance of appellate counsel was meritorious. He concluded that appellate counsel should have raised the mistrial claim that, in his view, would have justified a new trial. However, this claim was unexhausted (i.o.w. it had not yet been presented to the state courts). New York courts allow an ineffective assistance of appellate counsel challenge in an error coram nobis proceeding that is filed directly with the Appellate Division. Judge Gleeson granted Ramchair a stay to allow him to pursue the claim in state court.
What’s remarkable about this is that it really is a pre-emptive decision. He gave the claim complete and full consideration even though such a thorough analysis was not entirely necessary. Ostensibly, he did it so that he could justify granting a stay to allow petitioner to go back to state court to pursue an unexhausted claim.
However, this really was more of a discretionary call. He could have just given a slightly more than superficial analysis of the claim and shown that the claim was not meritless. He did not have to go all the way out there to say that it actually was meritorious. Judge Gleeson probably should have given the state courts the opportunity to have a first crack at the claim. It would seem that, under federalism principles that lie at the core of habeas, that is the best way to approach the situation.
But Judge Gleeson did not wait to give the state court the first word. He issued a thorough, highly detailed decision that basically issued a final word on the claim long before final word was necessary. It shows a deep lack of trust that the state court would get it right. Essentially, he gave the state court a road map to the proper conclusion, all along knowing that if the state court refused to grant relief, he would since Ramchair would eventually return to federal court once the state court process was over.
To boil it down to its essence: Jude Gleeson dared the state courts to deny Ramchair relief.
Chapter 5 - The State Courts' Response
Ramchair returned to state court and filed the error coram nobis petition.
In March 2006, the Appellate Division denied the petition. Without any analysis, the Appellate Division stated, "The appellant has failed to establish that he was denied the effective assistance of appellate counsel." People v. Ramchair, 27 AD3d 668 (2d Dept. 2006).
That is a pretty typical decision. The Appellate Divisions rarely grant these petitions. It is just as rare for an Appellate Division to provide any reasoning in denying a petition.
But the state court story did not end there. The New York Court of Appeals granted permission to hear the case, thus setting up a potential battle between that court and Judge Gleeson.
And the Court of Appeals did not disappoint. In March 2007, the court affirmed the denial of the petition, concluding that appellate counsel had not been ineffective. And the reasoning behind it was pretty amazing. First, the court stated that counsel filed a "comprehensive" brief that raised two strong claims, one of which could have resulted in a dismissal of the charges.
More important, counsel "chronicled the facts that formed the basis" of the mistrial claim to the appellate court. In other words, the court suggested that counsel can be effective if the attorney merely talks about the facts of a possibly winning claim, even if the attorney does not actually raise it as a claim. That is pretty amazing.
The court also noted that there was some case law that supported the admission of the evidence that counsel did not object to the lineup. This meant that appellate counsel may have had a strategic reason for raising the claim as she did. The court concluded that, "because we cannot say from this record that there was no solid legal basis for appellate counsel's strategy, we conclude that the Appellate Division did not err in denying defendant's petition for a writ of error coram nobis." People v. Ramchair, 8 N.Y.3d 313, 317 (2007).
So, the state courts accepted the dare and collectively shrugged their shoulders at Judge Gleeson's threat of habeas relief.
Chapter 6 -- Judge Gleeson Remains Unbowed
Ramchair returned to federal court, giving the case back to Judge Gleeson.
In April 2008, Judge Gleeson stood by his previous decision and granted habeas relief to Ramchair. He repeated his contention that Ramchair's trial was "fundamentally unfair." He reviewed the facts that supported this conclusion. He then addressed the ineffectiveness claim, pointing out that the claim that appellate counsel raised had no chance of success while the winning mistrial claim was the one that should have been raised. That made her ineffective.
He then took on the Court of Appeals' decision. After quoting extensively from the decision, he noted that, under the habeas standard of review, the decision did provide a "singificant impediment" to the grant of habeas relief.
However, Judge Gleeson reasoned that Ramchair easily overcome that impediment as the Court of Appeals' decision was an unreasonable decision. First, he pointed out that the Court of Appeals "simply misapprehend[ed]" the mistrial claim. He explained that Ramchair did not challenge the admissibility of trial counsel's presence at the lineup, but the consequences of the admission of the evidence where trial counsel was the attorney at the lineup.
Further, he stated that this was not a situation where appellate counsel was faced with an array of potential points on appeal and strategically elected not to raise an additional point. In such a situation, appellate counsel has the discretion to make strategic choices as to which claims to raise and will not be considered ineffective. However, according to Judge Gleeson, this case was different. Appellate counsel actually raised the relevant claim here, but did not present it in the proper way. In other words, since counsel had raised the claim -- including the factual basis for the claim, there was nothing stopping appellate counsel from raising it in its proper guise. This basically, and effectively, flipped the Court of Appeals's reasoning on its head. Judge Gleeson concluded that this was a mistake that Ramchair should not have to pay for.
Judge Gleeson also criticized and questioned the Court of Appeals' attitude that so long as appellate counsel "comes close enough to getting it right" was enough to extinguish an ineffective claim. He pointed out that simply putting a claim out there in some way , without actually raising it, was not enough. A court does not take on arguments not raised by counsel. He stated that the Court of Appeals' reasoning "does not comport with how that court or any other actually reviews claims. It is not a fair answer to Ramchair's contention that his appellate counsel blundered." Ramchair v. Conway, 04 CV 4241, 2008 WL 919630 at *5 (EDNY April 4, 2008). He granted habeas relief, ordering that Ramchair either be released or be granted a new trial.
As to be expected, Judge Gleeson stuck with his initial conclusion that counsel was ineffective. However, what was incredible about this second decision was his willingness to provide such a severe smackdown of the Court of Appeals. Clearly, Judge Gleeson was not happy that the Court of Appeals so roundly ignored his earlier opinion.
Chapter 7 -- The Second Circuit Speaks
This gets us to the unpublished order from last week. Since habeas was granted, the State had an automatic right to appeal the decision to the Second Circuit.
But just as Judge Gleeson was unhappy with how the state court acted, the Second Circuit questioned Gleeson's ultimate decision.
As mentioned at the beginning of this extremely long post, the Second Circuit vacated Judge Gleeson's decision. The court stated that, before relief can be granted on an ineffective assistance of counsel claim, a hearing should typically be held to give counsel a chance to explain her actions. So, the case will go back before Judge Gleeson to have appellate counsel, for the first time in the course of this drawn out proceeding, provide her insight.
But what's interesting about that is that Judge Gleeson has already pretty much concluded that there simply could not be a strategic reason for appellate counsel's behavior -- she presented the factual basis of the claim, but raised the wrong legal argument. She raised a legal claim that had no chance of success and forewent the claim that had the only chance of success. In that sense, the utility of the hearing is debatable, at least from how Judge Gleeson has approached the issue.
But from the perspective of an appellate counsel, I appreciate that the Second Circuit is giving appellate counsel the opportunity to speak. She may offer something that Judge Gleeson failed to consider. Also, it does seem fair to give appellate counsel at least an opportunity to say something before being found to be constitutionally ineffective. So while I doubt appellate counsel will convince Judge Gleeson that she acted reasonably here, I am comfortable with the Second Circuit's actions here.
But that is only from a personal perspective as an appellate attorney. I believe that there are also many situations, particularly in the context of trial counsel, where the record is more than clear that a mistake was made and there was absolutely no conceivable strategy. Felt it was important to throw that in. At the same time, I am guessing that trial attorneys as a group would ask for the same opportunity to speak that was granted to appellate counsel here [sorry to stir the pot, there is already enough distrust between trial and appellate attorneys].
The Second Circuit also addressed one other point. In anticipation that Judge Gleeson will stand by his decision after a hearing, the court discussed the issue of relief. It noted that, while a habeas court has broad discretion in determining the appropriate relief, the typical remedy for ineffective assistance of appellate counsel claim is a new appeal. But Judge Gleeson ordered a new trial. The court told the judge that he could order a new trial, but he had to explain his reasoning as to why a new trial was appropriate, as opposed to a new appeal. It can be viewed as a minor smackdown of Judge Gleeson's actions. I am guessing, though, that Judge Gleeson will be more than happy to explain why Ramchair should get a new trial, as opposed to wading through the state appellate process another time.
So the saga of Racky Ramchair continues . . .
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