Second Circuit issued a favorable summary order today in Byrd v. Alexander, 09-5309-pr. Order available here.
This case was actually argued back in January. Kind of get the sense that the court was considering a published opinion here, but then decided against it. I wish it had issued a published opinion since there is good stuff in here, even though petitioner ultimately lost the case.
Details:
Byrd v. Alexander, 09-5309-pr
- Habeas Denied
- Argued: 1/14/11
- Panel: Jacobs, Wesley, Chin
- Lower Ct. Info: 08-CV-70 (SDNY Dec. 7, 2009) (LAK) (THK) (unpublished order)
- In Circuit: Circuit Ct. COA
- Issues: IAC
ANALYSIS: Subtitle of this case: state courts acting illogically.
And, if you have read my other posts today, this case continues with the independent and adequate theme. And I will also pull the uncommon sense meter out of hibernation. But at least in that regard the federal courts were on the same wavelength here.
Petitioner argued that his counsel was ineffective for failing to seek, in a sexual assault case, independent testing of a biological sample recovered from the victim. The State's expert had concluded that semen was present, but that there was no genetic material to be analyzed. Of course, that was a double positive for the State: we got you on the semen, but sorry you can't prove that it's not your's. Obviously, this kind of finding just doesn't make much sense from a real world perspective. Seems like a completely partial analysis. But this evidence went unchallenged.
Petitioner brought a 440 motion raising IAC. The State court denied the motion on the ground that petitioner, who is trying to show that his attorney was ineffective, did not submit an affirmation from that attorney. Yep, you read that correctly. We have seen this ridiculousness before. This is so obviously unfair that I feel like I shouldn't need to even say it. But, of course, state courts keep doing it.
Petitioner then came to federal court. And the federal judge granted a request to get the independent testing. Thank you, federal court. Another example of why habeas review remains important. It just seems so objectively obvious that further testing should have been done here. It should not have taken a federal court to have granted the request. But, of course, it was the federal court that had to do it.
And, lo and behold, the independent expert concluded that the biological substance was not semen and the substance did not contain any male DNA.
After getting these favorable results, petitioner went back to state court, raising IAC. The state court concluded that the claim was procedurally barred because petitioner did not raise it on direct appeal. You have to be kidding me, right? How could he have brought this claim on direct appeal when the claim is based on NEW evidence that was necessarily outside the record on appeal. Just totally insane. It's scoring pretty high on the uncommon sense meter.
Nevertheless, the state court went on to say that petitioner was not prejudiced by the error.
Thankfully, the Second Circuit concluded that neither of the procedural rulings were adequate. The language is not as strong as it could be, but it's still good.
As for the attorney affirmation issue, the court stated, "We conclude this failure does not bar our review of the claim, as 'New York courts do not inflexibly require that defendants claiming ineffective assistance must present a supporting affidavit from the challenged attorney.' Jenkins v. Greene, 630 F.3d 298, 303 (2d Cir. 2010). We decline to rely on this procedural issue as a basis for our disposition of Byrd’s application for habeas relief." That's a nice result.
As for the other procedural decision, I wish the court's language was a little stronger. But it still implies some good things. It stated, "Likewise, this procedural failure does not bar our reaching the merits. Respondents do not argue that Byrd’s failure to raise his ineffective assistance challenge on direct appeal bars our review of his claim. Cf. Clark v. Perez, 510 F.3d 382, 392 (2d Cir. 2008) (noting "that a motion to vacate based on facts visible on the trial record must be dismissed where the defendant unjustifiably failed to raise the issue on direct appeal")." So it is saying, without saying, that the state court decision was unjustifiable, as even the State acknowledges, so it can't be considered adequate.
I'll note that the Second Circuit also mentioned that it was appropriate to hurdle over the procedural issue since the merits were easy resolvable. And it finds that, on the merits, the state court's decision that there was no prejudice was not unreasonable.
So a loss for the habeas petitioner, but not a bad decision on the procedural questions.
Comments