The Second Circuit issued a summary order on Friday in Munoz v. Burge. It's a relatively short summary order that goes directly to the merits of the IAAC issue. It's pretty fact-intensive, so there's not much to say about it.
But I will point out this: the Second Circuit says, without citation, "we consider the law as it existed at the time of the appeal for the purpose of Munoz’s ineffective assistance claim." In Munoz, the issue was whether appellate counsel should have raised a particular claim, even though it wasn't fully preserved. Apparently, at the time of the appeal, the relevant Appellate Division had concluded that preservation was necessary (even though it wasn't necessary in the original Court of Appeals decision establishing the particular legal claim). After the appeal, the Court of Appeals held (again, in my mind) that preservation was not necessary. In the Second Circuit's mind, the state of the law at the time of the appeal was that preservation was necessary, so no IAAC.*
*As an aside, I am not saying I necessarily agree or disagree with that logic. I am just accepting it on its face for the purpose of this post.
If only that concept was applied consistently. In a post I am currently drafting about depraved indifference cases (obviously no link yet), one argument that the federal courts rejected in order to overcome a procedural default was a "futility" claim. It goes something like this: based on the law at the time, defense counsel had no ground to raise an insufficiency argument, so the failure to raise it was justified. To the federal courts, that was not good enough.
But that is absolutely no different than what the Second Circuit just stated in Munoz. Once again, here's the quote from Munoz; I'll just exchange "trial" for "appeal" and "futility" for "IAC": "we consider the law as it existed at the time of the [trial] for the purpose of Munoz’s [futility] claim." See? Consistency is a lot of fun and it sounds great here. But as is often the case in habeasland, consistency does not matter.
In any event, here are the details:
Munoz v. Burge, 10-3834-pr
- Argued 9/20/11; Decided 10/14/11; Summary Order
- Panel: Pooler, Parker, Chin
- Lower Ct. Info: 02-CV-6198, 2010 WL 3394696 (EDNY Aug. 20, 2010) (NGG) (LB)
- In Circuit: Dist. Ct. COA
- Issues: IAAC based on counsel's failure to raise claims that the trial court impermissibly delegated judicial responsibility and did not disclose jury notes to the defense.
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