The Second Circuit issued a summary order today in Burchard v. Cuomo. The allegations in this case were interesting: a conflict of interest based on defense counsel's position as campaign manager for the district attorney. The court concludes that, even assuming that this position was "representation," there is no indication that there was any active conflict (as the campaign ended four years earlier) and there was no showing of any divergance of interest.
The one thing I found interesting was that the court renamed the case Burchard v. Schneiderman, who, under FRAP 43(c0(2), gets automatically substituted as the named Attorney General. However, the order says that Scheiderman was replacing former Attorney General Eliot Spitzer. What happened to Cuomo? He had already been substituted for Spitzer in the Second Circuit appeal. That is what happened at the time of the COA grant. I looked at the rule and it would appear that Cuomo should have been considered the party on appeal for the purpose of this substitution.
None of this matters, obviously. I just thought it was weird that Cuomo was made to disappear here. My only guess is that maybe the parties' briefs used the name Spitzer instead of Cuomo in the caption. I am losing interest in all of this as I write it.
In any event, here are the details:
Burchard v. Cuomo, 10-1045-pr
- Affirming Denial of Habeas
- Submitted: 10/26/11; Decided: 11/04/11; summary order
- Panel: Walker, Katzmann, Wesley
- Lower Ct. Info: 07-CV-0124, 2010 WL 681258 (WDNY Feb. 24, 2010) (MAT)
- In Circuit: Circuit Ct. COA
- Issue: IAC based on his trial counsel's alleged conflict of interest
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