Second Circuit issued a summary order the other day in a habeas case. It's called Ridgeway v. Zon, 09-4789-cv. I originally missed it since it did not have the customary "pr" after it. However, I looked closely at the titles of the list of summary orders, just in case, and the name just seemed familiar. It was not a case that appeared on the Pending Second Circuit Cases Page. That's because it was a Second Circuit COA grant with a pre-2010 docket number. In other words, a pre-ECF case, so no ability to search for the COA order.
Fortunately, my familiarity with the name of the case was because I wrote about the district court's decision (back when I was covering every district court decision that came out -- in retrospect, I can't believe I had the time to do that). You can read the DJ's decision here. This was a case where I thought the DJ's reasoning was completely unpersuasive on the IAC claim. The IAC claim was based on counsel's failure to consult an expert on vague evidence of sexual abuse. The Second Circuit has held, on several occasions, that counsel can be considered ineffective for this very reason. Nevertheless, the DJ did not grant a COA, but the Second Circuit did.
And the Second Circuit agreed with me that the IAC claim was "not without force." However -- and this really made my blood boil to the extreme -- the court concluded that its hands were tied because of Cullen v. Pinholster. Essentially, because the state court did not hold an evidentiary hearing to review the IAC claim, there was not enough facts in the state court record to conclude that the state court got it wrong, even though there are reasons to believe that further factual inquiry would show that counsel was ineffective.
And the Second Circuit appearred to voice some distaste with this situation. Here's what they say:
Ridgeway's appeal from his conviction under New York Criminal Procedure Law § 440.10 was decided on the merits by the Niagara County Court. The record in that court is sparse, to say the least, see Res. Br. 7-8 (discussing the state court record on appeal), and failed to establish conclusively that Ridgeway's counsel had not consulted a medical expert or ignored Ridgeway's request to call his relatives. To be sure, additional information proffered before the District Court appears to lend some credence to Ridgeway's claims. As in other cases, see Eze v. Senkowski, 321 F.3d 110, 135-36 (2d Cir. 2003), we might have remanded the cause to give Ridgeway's counsel an opportunity to explain behavior that does not appear to have been the product of "appropriate strategic considerations," Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (finding that attorney's decision not to prepare a defense because he believed that the trial court would grant his motion to dismiss was "not the sort of conscious, reasonably informed decision made by an attorney with an eye to benefitting his client"). However, the Supreme Court has now apparently foreclosed that avenue for us here. See Cullen, 131 S. Ct. at 1413 (Sotomayor, J., dissenting) ("[n]ew evidence adduced at a federal evidentiary hearing is now irrelevant to determining whether a petitioner has satisfied § 2254(d)(1).").
As I have said before, this is a real, real problem. It renders the system entirely unfair. There is now a huge loophole in the law. This case shows it. When faced with a decent claim that requires more factfinding, an uninterested state court can simply immunize a denial of relief from habeas review by failing to hold a hearing.
This is completely untenable. The AEDPA needs to be amended.
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