Lynch v. Dolce
789 F.3d 303
| 2d Cir. | 2015Background
- Lynch robbed a woman at knifepoint/purse-snatching; he told her he had a gun and shoved something against her side; witnesses did not see a gun. A co-defendant, Brandon, was later found with an unloaded .22 and was convicted of weapon possession but acquitted of the robbery.
- Lynch was tried and convicted of first-degree robbery based on "use or threatened use of a dangerous instrument" (N.Y. Penal Law §160.15(3)), and of second- and third-degree robbery; acquitted of the first-degree count based on being actually armed with a deadly weapon (§160.15(2)).
- At trial defense counsel requested a jury instruction that actual possession of the dangerous instrument was an element of the §160.15(3) offense; the trial court refused and instead recited the statutory language.
- Appellate counsel did not raise the trial court’s refusal to give the possession instruction on direct appeal; she raised other issues (sufficiency, weight, evidentiary rulings, sentencing) instead. The NY Court of Appeals decided People v. Ford (2008) — reaffirming possession as an element — after the trial but before counsel filed the opening brief.
- Lynch sought state coram nobis relief alleging ineffective assistance of appellate counsel; state courts denied relief without opinion. The district court denied habeas relief, finding no prejudice because evidence was sufficient to show Lynch actually possessed a gun. The Second Circuit reversed.
Issues
| Issue | Lynch's Argument | State's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for omitting the preserved jury-instruction claim requiring actual possession for §160.15(3) | Appellate counsel unreasonably omitted a significant, obvious, preserved issue (possession instruction), replacing it with weaker claims | Omission was reasonable or strategic; sufficiency/weight arguments were adequate substitutes | Counsel’s omission was constitutionally deficient under Strickland — failure to raise the clear instruction error fell below professional norms |
| Whether the trial court erred by refusing to instruct that actual possession of a dangerous instrument is an element of §160.15(3) | Lynch: trial counsel preserved the request and Pena/Ford require actual possession instruction | State: pattern charge language, or argue sufficiency renders error harmless | The refusal was error under New York law (Pena and later Ford); actual possession is an element |
| Prejudice standard and whether omission was harmless | Lynch: given weak evidence of possession and jury verdicts (acquittal on armed count; Brandon acquitted of robbery), there is a reasonable probability the first-degree conviction would be reversed | State/district court: evidence sufficed to show Lynch or an accomplice possessed the gun; thus no prejudice | The district court applied the wrong standard; under the correct harmless-error inquiry, the instructional error was not harmless beyond a reasonable doubt; prejudice established |
| Appropriate remedy and relief | Lynch: reversal of ineffective-assistance denial and conditional habeas relief; release pending new appeal given time served on unaffected counts | State: (implicit) seek ordinary appellate process | Second Circuit granted conditional writ, ordered new appeal and directed release pending resolution unless State acts within one week to vacate/restore appeal and free Lynch pending appeal |
Key Cases Cited
- People v. Pena, 50 N.Y.2d 400 (1980) (makes clear actual possession is required for dangerous-instrument robbery)
- People v. Ford, 11 N.Y.3d 875 (2008) (reaffirms Pena and holds failure to instruct on actual possession is reversible error)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance test: performance and prejudice)
- Evitts v. Lucey, 469 U.S. 387 (1985) (Sixth Amendment right to effective assistance on direct appeal)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA review: state-court denial must be an objectively unreasonable application of clearly established federal law)
- Chapman v. California, 386 U.S. 18 (1967) (harmless-error standard for constitutional errors)
- Mayo v. Henderson, 13 F.3d 528 (2d Cir. 1994) (appellate counsel ineffective where significant obvious issues omitted in favor of clearly weaker ones)
- Claudio v. Scully, 982 F.2d 798 (2d Cir. 1992) (appellate-ineffective-assistance principles)