Ramchair v. Conway

601 F.3d 66

Racky RAMCHAIR, Petitioner-Appellee, v. James CONWAY, Superintendent, Attica Correctional Facility, Respondent-Appellant.

Docket No. 08-2004-pr.

United States Court of Appeals, Second Circuit.

Argued: June 4, 2009.

Remanded: June 30, 2009.

Resubmitted to Panel: February 12, 2010.

Decided: April 2, 2010.

COPYRIGHT MATERIAL OMITTED

Frank Handelman, Law Office of Frank Handelman, New York, NY, for Appellee.

Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, for Andrew M. Cuomo, Attorney General, New York, NY, for Appellant.

Before: WINTER, CALABRESI, and SACK, Circuit Judges.

SACK, Circuit Judge:

This case has returned to us following a remand to the United States District Court for the Eastern District of New York (John Gleeson, Judge) pursuant to United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994). We sought from the district court additional findings of fact and conclusions of law supporting its order granting Petitioner-Appellee Racky Ramchair's petition for a writ of habeas corpus under 28 U.S.C. § 2254, and a clarification of its decision to grant Ramchair a new trial, rather than a new appeal. Ramchair v. Conway, 335 Fed.Appx. 122, 124 (2d Cir.2009) (summary order) ("Ramchair III").

At trial, Ramchair's counsel had moved for a mistrial after the prosecutor elicited testimony that counsel had been present at the lineup procedure during which Ramchair was identified as the perpetrator of the crime with which he was charged, but that counsel had not objected to the lineup. Before moving for a mistrial, trial counsel had requested and been denied permission to testify in rebuttal to the testimony by way of explanation as to why he may not have objected. The motion for a mistrial was denied, and Ramchair was ultimately convicted of first- and second-degree robbery. The district court concluded that Ramchair had been denied effective assistance of appellate counsel because appellate counsel had failed to claim on appeal that the trial court had erred in denying Ramchair's motion for a mistrial.

Respondent-Appellant James Conway, Superintendent of Attica Correctional Facility (the "State"), appealed from the grant of the writ and the grant of a new trial. We remanded for the district court to solicit evidence from appellate counsel as to her decision not to raise the mistrial claim, and for the district court to set forth its reasons for granting a new trial rather than a new appeal.

After holding an evidentiary hearing at which appellate counsel testified, the district court issued an order clarifying its grant of the writ and its grant of a new trial.

In light of the testimony elicited at the hearing, we conclude that the district court's decision to grant the writ was correct. Appellate counsel's failure to raise the mistrial claim was not a sound strategic decision, but a mistake based on counsel's misunderstanding that the mistrial claim, which trial counsel explicitly made, had not been preserved. We agree with the district court that this mistake rose to the level of constitutional ineffectiveness, and that the New York Court of Appeals' decision to the contrary was an unreasonable application of clearly established Supreme Court precedent. We also conclude, in light of the reasons provided by the district court, that its choice of remedy—a new trial—was not an abuse of discretion.

We therefore affirm.

BACKGROUND

The facts of this case, largely undisputed, have been set forth accurately and in painstaking detail by the district court in its first opinion in this case.¹ See Ramchair v. Conway, No. 04 Civ. 4241, 2005 WL 2786975, 2005 U.S. Dist. LEXIS 25852 (E.D.N.Y. Oct. 26, 2005) ("Ramchair I"); see also Ramchair v. Conway, 671 F.Supp.2d 365 (E.D.N.Y.2008) ("Ramchair II"); Ramchair v. Conway, 671 F.Supp.2d 371 (E.D.N.Y.2009) ("Ramchair IV"). We rehearse them here only insofar as we think it necessary to explain our resolution of this appeal.

Facts and Procedural History

In June 1995, Ramchair was charged with the robbery of a cabdriver in Queens after being identified by the victim in a lineup approximately seven weeks after the robbery. The victim had told the police that one of the two robbers was Guyanese Indian, which is, indeed, Ramchair's ethnicity. Of the six people in the lineup, at least four were not Guyanese, and at least two, unlike Ramchair, had no facial hair.² Ramchair's appointed defense counsel, Jonathan T. Latimer, III, was present at the lineup.

Ramchair later moved to suppress the identification on the ground that the lineup was unduly suggestive. Detective Robert Winnik, the police officer who was present at the lineup, testified to its circumstances, including the presence of an attorney— Latimer—for Ramchair. At the hearing on the motion, the prosecutor did not elicit information about Latimer's conduct during the lineup. The motion to suppress was denied and the case proceeded to trial in Supreme Court, Queens County.

During his first trial, Ramchair was assaulted in jail. The court therefore declared a mistrial.

Ramchair's second trial revolved around the disputed lineup identification. It also ended in a mistrial, over defense objection, when one of the jurors was hospitalized during deliberations. During the trial, the prosecutor had not sought to elicit testimony regarding Latimer's conduct during the lineup. Indeed, Detective Winnik testified that he could not recall who represented Ramchair at the lineup.

At Ramchair's third trial, defense counsel Latimer again disputed the fairness of the lineup. For the first time, Winnik identified Latimer as having been present at the lineup. The prosecution then sought to elicit testimony from the detective about whether Latimer had objected to the lineup at the time. Latimer objected, arguing that the prosecution was making him a witness. The court overruled the objection and Winnik testified that Latimer, although present, had not objected to the lineup.³

Latimer then requested permission to testify in rebuttal to Winnik's testimony, arguing that the prosecution's examination had improperly made him a witness against his own client. The court denied the request, reasoning that Latimer should have known in advance that he wished to testify to the improprieties of the lineup, and thus should have withdrawn from representing Ramchair before trial. Latimer attempted to explain that he had not planned to testify to any such improprieties, but now thought it necessary to rebut the implication that he had, by his asserted silence at the time, conceded that the lineup was fair. The trial court again denied the request, instructing Latimer that his views about the lineup were not relevant and that in any event, there had been no testimony as to his views of its fairness.

After Winnik's testimony, Latimer moved for a mistrial:

I have a motion for a mistrial. I think it is completely improper to allow the prosecution to imply through their questioning of this witness that I somehow condoned the line-up and contend that is fair and then not allow me to testify myself or to put on that information in the contrary with respect to that issue.

Ramchair I, 2005 WL 2786975 at *6, 2005 U.S. Dist. LEXIS 25852 at *15-*16. The motion was denied. The prosecutor then explicitly relied upon Winnik's testimony as to Latimer's conduct at the lineup in her summation.

Ramchair was convicted and sentenced to concurrent terms of imprisonment of 10 to 20 years on the first-degree conviction and 5 to 10 years on the second-degree conviction.

Ramchair appealed. He was represented by new counsel on appeal. Eventually—it took five years for Ramchair's lawyers to perfect Ramchair's appeal— appellate counsel raised two grounds for reversal.

First, counsel argued that Ramchair's third trial violated his right not to be placed in double jeopardy. The New York Supreme Court, Appellate Division, Second Department, rejected this argument because, in its view, the declaration of a mistrial in Ramchair's second trial had become "manifestly necessary" when one of the jurors had been hospitalized during deliberations, after the alternate jurors had been dismissed. People v. Ramchair, 308 A.D.2d 601, 602, 764 N.Y.S.2d 725, 726 (2d Dep't 2003).

Second, appellate counsel argued that Ramchair's constitutional right to present a defense was violated by the trial court's denial of Latimer's request to testify. The court rejected this argument too, citing the provision of the New York Code of Professional Responsibility, and related cases, prohibiting an advocate from acting as a witness on a significant issue of fact, subject to limited exceptions. The court reasoned that "since the defense counsel never requested to withdraw as the defendant's attorney so that he could be the defendant's witness," the trial court did not err in denying defense counsel permission to testify, because allowing him to testify would turn him into an advocate-witness. Id., 308 A.D.2d at 602, 764 N.Y.S.2d at 726-27. Appellate counsel did not, however, raise before the Appellate Division the issue of the trial court's refusal to grant a mistrial upon Ramchair's trial counsel's motion seeking one.

After leave to appeal to the Court of Appeals was denied, Ramchair filed, pro se, for habeas relief in the United States District Court for the Eastern District of New York (John Gleeson, Judge), raising the same claims that were rejected on direct appeal. The district court concluded that while those claims did not warrant habeas relief, a claim of ineffective assistance of appellate counsel raised by court-appointed habeas counsel might have been meritorious. Ramchair I, 2005 WL 2786975 at *16, 2005 U.S. Dist. LEXIS 25852 at *50-*51. It therefore held Ramchair's petition in abeyance pending the exhaustion of that claim in state court. Id., 2005 WL 2786975 at *18, 2005 U.S. Dist. LEXIS 25852 at *54.

Ramchair then sought to exhaust by filing a ...