I wanted to quickly revisit the habeas grant in Graham v. Portuondo discussed yesterday around here.
A question underlying the IAC ground is whether the particular claim of IAC is properly before the court. There was a slightly tricky procedural history. As I mentioned yesterday, the deficient performance affected two separate parts of the case: petitioner's competency and a potential EED defense.
The original petition only raised ineffectiveness as to competency. But, after counsel had been assigned, petitioner added the claim of a potential EED defense.
If I didn't make it clear yesterday, Judge Weinstein focused on the EED defense claim when determining whether there had been prejudice and the judge decided that he did not need to consider the competency aspect of the IAC claim. I guess I should have made that more clear.
In the final part of the opinion, Judge Weinstein included the following section: "4. Exhaustion and Second Petition -- A Procedural Conundrum." The judge pointed out that, if the two different IAC claims are essentially different forms of the same claim, then his decision is fine. If they are separate, his opinion is no good. The EED claim was unexhausted and would have be to considered a part of a "second or successive petition" that would need authorization from the Second Circuit to proceed.
Judge Weinstein's answer to the conundrum is pretty clever - look at the Second Circuit remand. He points out that, if these were two separate claims, then the Second Circuit would have affirmed the dismissal of the petition (albeit on a different ground than the one set forth in his original decision).
However, the Second Circuit did not take that position and, instead, remanded the case for an evidentiary hearing on the EED claim. So the judge deduces that the Second Circuit has already concluded that they are essentially the same claim.
But if they are two separate claims, the Second Circuit decision provides an answer for that, too. He suggests that, by remanding for a hearing on this particular issue, "the Court of Appeals might have decided to cut through one of the AEDPA's Gordian Knots* and moved the case towards a conclusion that saved years of litigation." So it can be assumed that the court had actually granted permission to bring a second or successive petition.
*To be honest, I decided to write this post because I loved the whole "AEDPA Gordian Knots" stuff. As well as the "Procedural Conundrum" language. Good times.
Judge Weinstein sums it up like this: "Whatever way the conundrum is analyzed, the district court's present duty seems clear under the mandate: hold the evidentiary hearing, and if the petitioner's present contentions are established, grant the writ."
Which is precisely what he did.
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