Habeas Corpus - Summary Order Affirming A Grant - Again

Another summary order this week affirming a district court grant of habeas corpus.  That's back to back weeks for that.

Schulz v. Marshall, 07-5543-pr, available here, Sept. 4, 2009, Pooler, Kravitz, DJ and ** (see below)

• Affirming Grant of Habeas
• Issues: IAC
• Notes: Court agrees with DJ that counsel was ineffective for failing to make adequate efforts to interview eyewitness and this failure prejudiced petitioner; Second Circuit goes out of its way to say that they were not exercising their own independent judgment on the issue, but that they had concluded that NY Court of Appeals unreasonably applied the Strickland standard; it's sad, the AEDPA really has emasculated the federal courts

The asterisk that once was Sotomayor also appears in this case, but unlike the summary order from last week where another judge was designated, this ended up just being a two-judge panel.  And one of those judges was a DJ sitting by designation.  These facts put together definitely lend a lot of support to Andy Fine's theory from last week that Sotomayor may have been preparing a dissent in last week's case.  And at the same time it throws cold water on the theories that I proposed: (a) the panel wanted a third judge since one of the judges was a DJ sitting by designation, and (b) the panel wanted a third since habeas was being granted.